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Submitted March 24, 1919-Decided June 20, 1919.

1. In a criminal case the court charged as requested that the con

fession of either co-defendant was not evidential against the other; and went on to say that according to his recollection of the de. fendants' testimony it was identical with the confessions. Held, no error, the jury having previously been cautioned not to accept the judge's recollection of the evidence as in any way

trolling. 2. On writ of error in a criminal case under sections 136 and 137

of the Criminal Procedure act, plaintiff in error is not entitled to a review of any alleged error, at the trial that is not specified in the causes for reversal provided for in section 137.


On error to Middlesex Oyer and Terminer.

For the plaintiffs in error, Theodore Strong.

For the state, Joseph E. Stricker, prosecutor of the pleas.

The opinion of the court was delivered by

PARKER, J. This case is closely connected with State v. Palmieri, decided at the present term, the defendants herein being jointly indicted with Palmieri, and a severance for trial being ordered. The present plaintiff's in error were also conVicted of murder in the first degree; the facts proved on the trial being substantially the same as in the other case.

Point 1 is, that the court erred in charging that there was no evidence justifying a verdict of manslaughter, and 2, in charging that the verdict should be murder in the first degree or acquittal. These points are covered by what has been said in the Palmieri case. It is asserted that there is evi. dence to show that De Palma went to the Smith house to get a drink of milk. It is in evidence that they went there and asked for milk, but there is nothing in the evidence to show t hat robbery was not the real object, and everything to show

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that it was. The suggestion that De Palma was entitled to defend himself against an attack by Roman Smith, the deceased, is utterly groundless. Upon all the evidence, Smith was simply attempting to defend his wife and property against an admitted band of desperadoes.

Points 3 and 4 are, that the court refused to charge as requested that the confession of Lavieri was not evidence against De Palma, and vice versa. The court did charge both requests. The real complaint is that the trial judge added that both had been sworn as witnesses, and, as he recalled their testimony, it was practically identical, almost word for word, as near as persons would be apt to give it, with their written statements or admissions. Counsel asserts that this is an incorrect statement of the evidence. But it does not pretend to be a statement of the evidence at all, but only of the judge's recollection of the evidence; and he had pre

iously carefully warned the jury, they were the judges of the facts, and if he should make any mistake in his recollection of the facts, or misstate any, or omit to state anything, it was their duty to supply that. Hence, the remark about the testimony of the defendants was mere comment, and did not deprive the charged requests of their full force, even if the judge erred in his recollection of the testimony.

The last point is, that the court refused the following request: “That the jury may at the time of rendering their verdict recommend imprisonment at hard labor for life, for both or either of the defendants."

The court did charge substantially as in the other case, that the jury might recommend imprisonment for life; and what was there said respecting “hard labor” applies here. The further point is made, however, that the clause "for both or either of the defendants” should have been included as requested. There were two requests on this phase of the case, as indicated in the printed book before us; one was as quoted above; the other omitted the words "for both or either of the defendants.” The specification of causes for reversal under section 137 of the Criminal Procedure act relies only on the

93 N.J.L.

Fagan v. Central Railroad Co. of N. J.

failure to charge the latter request, not containing the words in question. Consequently, the refusal of the former cannot be urged here. Section 137 provides that in cases where the entire record is taken up under section 136, the plaintiff in error “shall specify the causės in the record relied on for relief or reversal.” And it has been held, both in the Supreme Court and in this court, that without such specification a review cannot be had. State v. IIess, 65 N. J. L. 514; State v. Lyons, 70 Id. 635, 638, 639; State v. IIerron, 77 Id. 523.

The judgment will be affirmed.


For reversal-None.



Submitted March 24, 1919—Decided June 20, 1919.

Secondary evidence of the contents of a written release is admissible,

and where a case is tried and proof offered and admitted of the contents of a release which releases the defendant from all claim, without any objection, and the production of the release is not required by the plaintiff, the releasor, and the cause is submitted by both parties upon the theory that the contents of the release was proven as part of the defence, an instruction to the jury, that because of the non-production of the release, there was nothing before the court to warrant the jury in saying that the plaintiff was prevented from a recovery because of the release, was a legal error.

On appeal from the Monmouth County Circuit (out.

Fagan v. Central Railroad Co. of N. J.

93 N.J.L.

For the appellant, George Holmes and De Voe Tomlinson.

For the respondent, Wight, Wight & Golenbock.

The opinion of the court was delivered by

BERGEN, J. This was an action for damages which the plaintiff claims he suffered while in the employment of the defendant.

One of the defences was that plaintiff had released the defendant from all claim for his injuries for $85, which was paid to him. Plaintiff admits receiving the $85 and signing a paper which he thought was for wages. No objection was made to the secondary proof of the contents of the release, which was not produced by the defendant, and one of the issues tried was whether the writing was executed as a release or as a receipt. The answer of the defendant sets up that the paper released the defendant from all claim resulting from the injuries upon which this action is based, and the reply filed by the plaintiff is that the release was procured by fraud. This was a jury question, but one which they were not allowed to determine under the charge of the court. The cause was tried and submitted to the jury by both parties upon the theory that the contents of the release had been proven, but its execution as a release obtained by fraud or misrepresentation.

The trial court without request by plaintiff's counsel and of its own motion, instructed the jury regarding the release as follows: "It appears that some time after the accident the plaintiff left the hospital and went to defendant's office, and after accepting $85 signed a paper that was brought him. The plaintiff testifies that he thought he was signing a receipt. Defendant's claim agents testify that it was a release. It was a written document and must be produced by the defendant if it relies upon this document to prevent a recovery by the plaintiff. The paper has not been produced, and its absence has not been accounted for, and there is nothing be

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fore the court that will warrant you in saying that the plaintiff is prevented from recovery, if you find that he has any claim against this company, by reason of any paper that was signed at that time.”

This was a material legal error, and clearly injurious to the defendant, for it took from the jury all consideration of the effect of the release, if not obtained by fraud, which was for the jury to decide. Secondary evidence of the contents of a writing not produced is always competent if a proper foundation for its admission be shown, and where it is ceived without objection, and the parties acquiesce in its introduction, and try the case as if the contents were proven by the production of the writing, the necessity for proving the foundation for the admission of secondary testimony of contents is waived. This result makes it unnecessary to deal with the other grounds of alleged error.

The judgment will be reversed and a new trial ordered.

For affirmance—KALISCII, J. 1.




Submitted March 24, 1919—Decided June 20, 1919.

The defendant was indicted and convicted of a conspiracy to cheat

and defraud. One of the conspirators, by a false representation, obtained, from the victim of the conspirators, $25,000 upon an agreement to divide it equally between the conspirators, but he falsely represented to them that he obtained only $20,000, which was divided, defendant getting a share. Subsequently, defend

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