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in the hearing before the grand inquest she was, within the meaning of the statute, the complainant against him.

We further think that the contention on the part of the plaintiff in error that his wife's testimony upon the trial was improperly admitted because she did not at that trial offer herself as a witness, is not supported by the fact. As has already been pointed out, before being called upon to testify she was asked if she offered herself as a witness; her answer was that she did. It was at that time a matter for her personal determination whether she would pursue her original complaint by testifying against her husband at the trial, or whether she would not; and the matter was put fairly and squarely before her for decision. If she had declined to offer herself as a witness she would have been under no compulsion to testify. If she desired to continue her prosecution of the charge against her husband by testifying against him at the trial, she was entitled to do so by voluntarily offering herself as a witness against him; and this she did. We conclude, therefore, that she came within the statutory description of a complainant against her husband who offered herself as a witness against him at the trial, and that the testimony was, therefore, properly admitted.

It is next assigned for error that, although the evidence of the plaintiff in error received on the trial of the civil action was knowingly untrue, that fact will not support an indictment for perjury, because his testimony was not material to the issue then being tried. But this assignment, as it seems to us, rests upon a false assumption. The testimony was material, for it tended to show that the plaintiff in that litigation-that is, the wife of the plaintiff in error, had no longer any affection for her husband, and that for this reason the retention of his affection for her was of little, if any, pecuniary value.

It is further contended that the conviction before us should be reversed, for the reason that the court improperly permitted the son of the plaintiff in error to testify to a statement made by his father in a conversation with his mother, and in his presence. The testimony was as follows: "My

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father told us we had to get out, because he could not afford to keep my mother, myself and Mrs. Northcott." We think this testimony was competent, for it tended to show that the separation between the husband and the wife was because of the fact that he had taken up with the Northcott woman, and not because of any just ground of complaint which he had against his wife. In other words, that it tended to negative the truth of the statement made by him that he had found his wife and Smith in a position which would justify a belief on his part that she had violated her marriage vows.

There are other assignments of error referred to in the brief of counsel, but not argued with any vigor. We do not consider them of sufficient importance to justify any discussion by us. It is enough to say that they either rest upon an untenable legal theory, or that they could not have prejudiced the defendant in maintaining his defence upon the merits. The judgment under review will be affirmed.

THE STATE, DEFENDANT IN ERROR, v. WILLIAM TIETJEN, PLAINTIFF IN ERROR.

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

1. The presumption is that an act of judicial discretion was done in the proper performance of judicial duty, and the burden rests upon the person excepting to such act to overcome that presumption. by showing affirmatively that there was an abuse of discretion on the part of the trial court.

2. A defendant cannot submit to be tried without objection before a jury whose impartiality is not challenged, take the chance of being acquitted. and afterwards be heard to complain of the method by which it was selected, in case the verdict goes against him.

On error to Hudson County Court of Quarter Sessions.

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

93 N. J. L.

State v. Tietjen.

For the plaintiff in error, Alexander Simpson.

For the state, Pierre P. Garven, prosecutor of the pleas.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. The plaintiff in error was convicted in the Sessions of the crime of unlawfully carrying a concealed weapon. His contention that the judgment brought up by the writ should be reversed rests upon a single ground, viz., that in drawing the jury for the trial of the cause the court excused, as they were called, certain jurors, without specifying any ground for the judicial action.

It is stipulated by counsel that the jurors thus excused had on the previous day served upon a jury in a capital case, and that the verdict in that case was one of acquittal. The plaintiff in error concedes that the excusing of a juror whose name has been drawn from the box is a matter resting in the discretion of the trial court, and does not contend that the court, in the exercise of this discretion, must express its reason for the judicial act. On the contrary, he admits that the principle controlling in matters of this kind is that laid down by this court in State v. Lang, 75 N. J. L. 1, viz., that they must necessarily be left largely to the discretion of the trial judge; that unless it be made plain that he has abused this discretion, and that the defendant may have suffered injury thereby, the propriety of the judicial action cannot be challenged upon review. He asserts, however, that the reason which moved the court to excuse these jurors was that they had joined in the rendition of a verdict of acquittal in the capital case above referred to; that such a reason affords no just ground for excusing them; and that in doing so the court abused the discretion vested in it.

This contention is without merit for two reasons-first, there is nothing in the case to support the presumption that the judicial action rested upon any such ground. In the absence of anything to the contrary, it is not to be assumed that the excusing of these jurors had any relation to their conduct.

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in the earlier case; second, even if it be assumed that the court was moved to excuse these jurors because of their conduct in the earlier case, it does not follow that the judicial discretion was improperly exercised. The presumption is that the act complained of was done in the proper performance of judicial duty, and the burden rests upon the defendant to overcome that presumption, by showing affirmatively that there was an abuse of discretion on the part of the trial court. State v. Lang, supra. No attempt was made to discharge that burden.

But even if we had reached a contrary conclusion on this question, it would not enure to the benefit of the defendant. He made no objection to the excusing of these jurors, and sat silent while the box was being filled up from members of the panel subsequently drawn. He went to trial before the jury which was finally selected, and took the chance of being acquitted by that jury. A defendant cannot submit to be tried without objection before a jury whose impartiality is not challenged, take the chance of being acquitted, and afterward be heard to complain of the method by which it was selected, in case the verdict goes against him.

The judgment under review will be affirmed.

THE STATE, DEFENDANT IN ERROR, v. MARY LIONETTI, PLAINTIFF IN ERROR.

Submitted March 20, 1919-Decided June 4, 1919.

A married woman is justified in using such force in the defence of her husband as reasonably appeared to her in the heat of the trouble to be necessary to preserve the husband's life or to protect him from serious bodily harm.

On error to Hudson County Court of Quarter Sessions.

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

For the plaintiff in error, Alexander Simpson.

For the defendant in error, Pierre P. Garven.

The opinion of the court was delivered by SWAYZE, J. The defendant was slaughter.

convicted of man

The essential facts are as follows: She thought a man named Vanderveer was looking at her in an improper way and complained to her husband. He crossed the street and engaged in a controversy with Vanderveer, which resulted in a fight. The defendant says that Vanderveer got her husband around the neck; she went to his assistance with a club, struck Vanderveer and killed him.

The substantial defence was that she was acting in defence of her husband.

The trial judge correctly limited her rights to those which the husband himself had, but he stated the husband's rights too narrowly. He charged that the jury had to consider not what she or her husband thought, but what the jurors found to be the fact, and put the specific questions: Was the husband in serious bodily danger? Was he in danger of his life? Or was he in danger of serious bodily injury to himself? The judge then added: Was her husband in such serious danger, in dire peril, at that time, or in danger of receiving serious bodily injuries, that it justified her in taking this club and using it as she did? He then charged specifically that "if he were not in serious danger of dire peril or serious bodily danger, she had no right to do that; she had no right to use any kind of an instrument or club on this deceased, if her husband were not in that condition at that time; she had no right to do it, if her husband could with safety have retreated at that moment; and if her husband could have retreated at that moment without being in dire

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