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THE STATE, DEFENDANT IN ERROR, v. CHARLES B. RUNYON, PLAINTIFF IN ERROR.

Submitted March 20, 1919-Decided June 5, 1919.

1. An appellate court will not consider a ground of reversal which challenges the sufficiency of the testimony. It is only where the contention is that there is no evidence whatever to support the verdict that the court will examine the testimony, and then only for the purpose of ascertaining whether such contention is well founded.

2. A jury has a right to use their own experience in the consideration of the credit to be given to the testimony of a witness; they may consider the demeanor of the witness, his manner of testifying, his appearance, mental capacity, power of observation, closeness of attention, the probability of his statements, and their inconsistencies and contradictions, and other matters which would constitute a proper test under the circumstances of the case.

On error to the Union County Court of Quarter Sessions.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the plaintiff in error, William R. Wilson.

For the state, Walter L. Hetfield, Jr., prosecutor of the pleas.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. The plaintiff in error was convicted of an atrocious assault and battery committed on one Robert Alpaugh, the night ticket agent of the Central Railroad Company of New Jersey, at its office in Westfield.

The first ground of reversal urged before us is that there was not sufficient evidence to justify this conviction. It has been repeatedly held by this court that it will not consider a ground of reversal which challenges the sufficiency of the testimony. It is only where the contention is that there is

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no evidence whatever to support the verdict that the court will examine the testimony, and then only for the purpose of ascertaining whether such contention is well founded.

Next it is argued that there was error in the refusal of the court to charge a request submitted by the defendant bearing on the question of reasonable doubt. This contention is without merit. The court did not refuse to charge the request, but, on the contrary, after reading it to the jury, stated that it was a mere repetition of what had already been charged. The accuracy of this judicial statement was not challenged. by the plaintiff in error, and our examination of the instruction to the jury satisfies us that it was accurate.

The next contention is that the court erred in the following portion of its instruction to the jury: "The jury may consider, among other things, in ascertaining the truth, the demeanor of a witness, his manner of testifying, his appearance, mental capacity, power of observation, closeness of attention, the probability of his statements, and their inconsistencies and contradictions, and all other things that may be inferred from experience, or which the jury may deem proper under the circumstances." The objection is directed at the last clause of this instruction. Its meaning, as it seems to us, is that the jury had a right to use their own experience in the consideration of the credit to be given to the testimony of a witness; that they might consider, not only the matters specifically mentioned, but other matters which would constitute a proper test under the circumstances of the case. So construed, it is not legally objectionable. The argument of counsel is based upon the proposition that this instruction permits the jury to infer from their own experience what the verdict should be, and permits them to arrive at a conclusion other than what the evidence would require them to find. The underlying proposition is not, in our opinion, justified by the language used.

The last ground of reversal which is argued is directed at the action of the trial court in permitting the prosecutor of the pleas, over objection, to ask the following questions of the plaintiff in error while on the witness-stand: "Now, on

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April 29th, 1908, you pleaded guilty in Hudson county, in the Court of Quarter Sessions, of the crime of grand larceny "On April 29th, 1908, did you plead guilty to the crime of petit larceny in the Court of Quarter Sessions of Hudson County?" "On June 11th, 1915, did you not plead guilty to two charges of burglary in the Court of Quarter Sessions of Hudson County?" "On May 15th, 1914, did you not plead guilty in the Court of Quarter Sessions of Union County to four indictments charging you with the crime of breaking and entering with intent?" Each of these questions the defendant answered in the affirmative. As we understand the argument of counsel upon this point it is based upon the theory, first, that a conviction of crime cannot be shown against a defendant unless the nature of the crime is such as to render him infamous; and second, that the only way to prove the conviction is by the production of the judgment record, or by the admission of the defendant that such conviction has been had; his position being that a plea of guilty is not a conviction, but a step in the cause antecedent. thereto, and that it is only the conviction itself which is permitted to be shown under the first section of our Evidence act. Both of these questions, however, have been resolved by the Court of Errors and Appeals adversely to this theory. State v. Henson, 66 N. J. L. 601.

The judgment under review will be affirmed.

THE STATE, DEFENDANT IN ERROR. V. EMERY J. SNYDER, PLAINTIFF IN ERROR.

Submitted July 8, 1918-Decided June 17, 1919.

1. Under the fifty-seventh section of our Criminal Procedure act a married woman who has voluntarily appeared before the grand jury, and there charged her husband with a criminal offence, may be admitted to testify against him on the trial of an indictment based upon that charge, if she sees fit to offer herself as a witness.

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2. On the trial of an action brought by a wife to recover compensation for the alienation of the affections of her husband, testimony offered by the defendant tending to show that the plaintiff. had no longer any affection for her husband, and that for this reason the retention of his affection for her had little, if any. pecuniary value, is material to the issue. Such testimony, if knowingly false, will support an indictment for perjury.

On error to the Hunterdon County Court of Quarter Sessions.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the plaintiff in error, Frederick A. Pope.

For the state, Harry J. Able, prosecutor of the pleas.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. The defendant was convicted on an indictment for perjury, the charge being that in a suit brought by his wife against one Mable Northcott for the alienation of the affection of Mrs. Snyder's husband (the present plaintiff in error) he falsely testified that on a certain occasion prior to the institution of that suit he had found his wife and a man named Smith in a position which justified the conclusion that they were then engaged in adulterous intercourse.

The principal ground upon which we are asked to reverse this conviction is that the trial court, over the objection of the plaintiff in error, admitted his wife, Mrs. Snyder, to testify as a witness for the state to matters tending to show the truth of the charge laid in the indictment. Whether Mrs. Snyder was a competent witness for this purpose depends upon the true construction of section 57 of our Criminal Procedure act. The pertinent provision of that section is as follows: "Upon the trial of any indictment

* * * a married woman shall be admitted to testify against her husband when she is the complainant against him, if she shall

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offer herself as a witness." Comp. Stat., p. 1838. The uncontroverted testimony in the case shows that no formal com plaint against her husband was made by the witness before a committing magistrate; but it also appears that after the conclusion of the trial of the civil case Mrs. Snyder instructed her attorney to bring to the attention of the prosecutor of the pleas the alleged perjury of the plaintiff in error; that this was done, and, as a result, she was subpoenaed to testify before the grand jury, and that on the trial of the indictment, having been subpoenaed as a witness by the state, she was asked, before being called upon to testify, whether she offered herself as a witness, and answered "I do offer myself."

Under our system of criminal procedure the person instituting the prosecution may, if she sees fit, make a formal complaint before a committing magistrate against the alleged wrong-doer, or she may, if she prefers, make such complaint in the first instance before the grand jury itself. Whether she pursues the one course, or the other, she is equally the complaining witness in the matter. It is argued before us that although this may be so as a general rule, yet, when she appears before the grand inquest in response to a subpoena requiring her presence there, her appearance is not voluntary, and that she is not making any complaint before that body against the alleged wrong-doer, but is giving her testimony solely by reason of the compulsory process. We think this contention is unsound, so far as it has application to the present case. Mrs. Snyder was a voluntary agent in bringing to the attention of the grand jury her husband's criminal act; she followed the proper course in so doing; she had the matter brought to the attention of the prosecuting officer of the state, and it was because of this fact that the subpoena was issued requiring her presence before the grand jury. The subpoena did not compel her to testify before that body against her will, and the presumption is that in giving such testimony she was acting as a free agent in pressing her complaint against her husband. We conclude, therefore, that

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