Smith, Kline & French Co. v. Freeman.

93 N. J. L.

The defence was that the note was made for $55 and was thereafter altered by the agent of the payee to $550 without the assent of the defendant.

The verdict was for the defendant.

We are of the opinion that the verdict was contrary to the law of case as declared in the charge of the court.

The trial judge seems to have assumed that the evidence showed conclusively that the note was complete and regular on its face, and was taken by the plaintiff, before maturity, in good faith and for value in the regular course of business, and without notice of any infirmity in the note or defect in title of the Guarantee Food Company. Accordingly, he instructed the jury that the plaintiff was a holder in due course. Of course, if such assumption as to the facts was right, the instruction was right, for it was correct in law. Comp. Stat., p. 3741, § 52.

The judge, however, considered that it was open to the jury to find from the evidence, if they saw fit, that the note had been altered from $55 to $550 by the agent of the payee without the assent of the maker before it was negotiated to the plaintiff. That question he therefore submitted to the jury, and in connection therewith charged that when a note has been materially altered, and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment according to the original tenor. That was correct in law. Comp. Stat., p. 3719, § 124.

Finally, the judge instructed the jury to determine from the evidence whether or not the note was altered from $55 to $550; that if it was altered the plaintiff could recover $55 only that if not altered the plaintiff should recover $550 with due allowance for interest.

It is, therefore, manifest that the verdict for the defendant was contrary to the law of the case as declared in the charge of the court and must be set aside for that reason.

The other reasons assigned we have not considered.
The rule will be made absolute.

STATE OF NEW JERSEY, DEFENDANT IN ERROR,
NICHOLAS MATARAZZA AND

PLAINTIFFS IN ERROR.

V..

NICHOLAS ARTESE.

Argued February 18, 1919-Decided June 18, 1919.

1. A writ of error will not lie in a criminal case until sentence has been pronounced.

2. The action of the trial judge upon a motion to quash an indictment is discretionary and will not be reviewed on strict writ of

error.

3. When the facts set forth in an indictment clearly charge in substance and effect the habitual sale of intoxicating liquors contrary to law, it is valid under section 74 of the Criminal Procedure act (Comp. Stat., p. 1844), even though the word "habitual" is not employed therein.

4. A judgment upon a general verdict of guilty will not be reversed because of a bad count in an indictment where the indictment contains a good count, and the penalty imposed is authorized by law for conviction upon the good count.

5. The fact that an indictment for the habitual sale of intoxicating liquors contrary to law charged that the sales were made "without license for that purpose first had and obtained in the manner prescribed by the statute in that case made and provided," does not render it invalid, even though there is more than one statute by virtue of which a license to sell intoxicating liquors may be granted in the municipality where the sales in question were made.

6. The admission of illegal evidence will not avoid a judgment in a criminal case on error if it plainly appears that such evidence could not have injuriously affected the defendant on the merits of the case.

On writs of error to the Atlantic Quarter Sessions Court.

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

For the plaintiffs in error, Babcock & Champion.

For the defendant in error, Edmund C. Gaskill, Jr., prosecutor of the pleas, and Charles S. Moore.

State v. Matarazza.

The opinion of the court was delivered by

93 N. J. L.

TRENCHARD, J. Three indictments are sent up with writs. of error in these cases, each one of which is based on the sale of intoxicating liquor without a license. One indictment is against Matarazza alone; another against Artese alone; and the third against the two jointly. By consent they were tried and have been argued here together.

As to the conviction on the third indictment, it appears that no sentence has as yet been pronounced, and, consequently, there is nothing before us for review.

In the remaining cases error is assigned because the trial judge refused to grant a motion to quash; but the action of the trial judge upon a motion to quash an indictment is discretionary and will not be reviewed on strict writ of error. See cases collected in State v. Riggs, 92 N. J. L. 575.

The next ground upon which we are asked to reverse these convictions is that the indictments are void because of duplicity, the pith of the contention being that the various counts each charge separate sales to different individuals on different occasions.

It is not clear that the motion in arrest of judgment, under which this question is sought to be raised, is properly before us; but we will assume for the purposes of this decision that it is. We further assume, without deciding, that the first three counts in the indictments under review are bad; but even so, the fourth count in each is good under section 74 of our Criminal Procedure act (Comp. Stat., p. 1814), prescribing the form of an indictment for the offence of maintaining a common law nuisance or keeping a disorderly house, where the offence sought to be punished consists wholly in the unlawful sale of spirituous, vinous, malt or brewed liquors. It is true that the word "habitual" was not employed in this count, but it charged that the defendant in Atlantic City on December 1st, 1915, and on divers other days and times between that day and November 1st, 1917, in a certain designated house unlawfully did sell and knowingly permit to be sold to certain designated persons certain designated vinous, spirituous and malt liquors (the same not

being compounded and intended to be used as medicine) by less measure than a quart, without license for that purpose first had and obtained in the manner prescribed by the statute in that case made and provided, to the evil example of all others in like case offending, contrary to the statute in such case made and provided. We, therefore, think the facts set forth in this count clearly charge in substance and effect the habitual sale of intoxicating liquor contrary to law, and that it is valid. State v. Reily, 66 N. J. L. 399.

That being so, the presence of the bad counts will not result in reversal of the judgment upon the general verdiet of guilty, because the rule is that such a judgment will not be reversed because of a bad count in the indictment where the indictment contains a good count, and the penalty imposed is (as here) authorized by law for conviction upon the good count. State v. Mount, 72 N. J. L. 365.

The fact that the indictments charged that the sales were made "without license for that purpose first had and obtained in the manner prescribed by the statute in that case made and provided," does not render them invalid even though there is more than one statute by virtue of which a license to sell intoxicating liquors may be granted in the municipality where the sales in question were made.

The last point is that the trial judge improperly admitted in evidence a card from the office of the Mercantile Appraiser, purporting to show that a mercantile license was granted to the defendant to conduct a boarding-house at the place where the intoxicating liquors were sold.

This evidence was offered by the state to show that the defendants conducted the place in question and was objected to as not competent for that purpose. We incline to think it was admissible; but if it was not, its admission will not avoid these judgments because it plainly appears that it could not have injuriously affected the defendants on the merits of the case, since the fact that the defendants conducted the place was otherwise conclusively established, and, indeed, was not disputed.

The foregoing observations, in effect, dispose of every question properly raised and argued.

The writ of error bringing up the indictment upon which no sentence was passed will be dismissed, and the judgments upon the two remaining indictments will be affirmed.

STATE OF NEW JERSEY, DEFENDANT IN ERROR, V. LOUIS UNGER, WILLIAM F. LOONEY AND JOHN P. KELLY, PLAINTIFFS IN ERROR.

Submitted December 5, 1918-Decided June 17, 1919.

1. Upon the trial of an indictment of three members of a board of registry and election, where the judge charged that the duty of making comparison of the signature of the voter in the poll book with that in the registry book was cast upon the election officers, but also clearly and correctly charged, in the very language of the defendants' request, that not all of the election officers, but only one of them, was charged with that duty, in accordance with section 46 of the act of April 19th, 1911 (Pamph. L., p. 276, as amended by Pamph. L. 1916, p. 586), which provides that "one of the members of the board of registry and election shall compare the signature," such charge, if objectionable as to a portion thereof when considered alone, was correct and not misleading, considered as a whole, and could not have prejudiced the defendants.

2. Even if a portion of a charge, considered alone, is objectionable, it will not lead to a reversal when it is clear that, in the circumstances of the case, the charge, considered as a whole, was correct and not misleading and could not have prejudiced the defendants.

3. Where two or more defendants are indicted and tried together, the declarations of one, which have a legitimate tendency to establish his guilt, are admissible against him, even though not admissible against his co-defendants. In such case the proper remedy of the defendant against whom the declaration is not admissible is to request a limitation of its application.

4. It is within the discretion of the trial judge to admit in rebuttal, or at the time of rebuttal, evidence which is not strictly rebuttal, and which should or might have been offered in chief, and the admission of such evidence will not lead to reversal except in cases of gross abuse of such discretion.