59 N.J.L. 573 | N.J. | 1896
The opinion of the court was delivered by
The charge in this case against the defend-, ant Pai'ks is that he was guilty of keeping a disorderly house at Asbury Park, of the nature of a gambling-house, between July 6th and August 6th, 1894, although the- indictment against him and four others covers a longer time. ' - ,
The insistment against Parks is that the alleged gambling was arranged for and carried on with his knowledge and connivance.
In establishing this fact, or in failing to do so, the state would be greatly assisted in ascertaining the truth by the introduction of any evidence which would show the attitude of Parks in the matter after he had reason to believe that gambling was going on there, and also by learning whether any previous occurrences holding a strict relation to this offence could be brought home to Parks.
It therefore became competent to show, in this inquiry, conduct on the part of Parks which would indicate his position, or any circumstances strictly related to this offence which would reveal a criminal purpose of that kind. In seeking to meet these two particulars, two matters were offered in evidence, the rulings upon which were excepted to and after-wards sustained by the Supreme Court.
The first appears upon page 121 of the printed case. The marshal of the borough of Asbury Park, called as a witness on behalf of the defendant, after stating that an oral complaint was made to him by Parks on August 6th, “ concerning these premises,” was asked by defendant’s counsel, “"What was the nature of that oral complaint ? ”
This question was objected to, the objection was sustained by the court and an exception was taken, and the ruling was afterwards sustained by the Supreme Court. In that ruling, error is assigned, we think, correctly.
The complaint, of which the nature was asked, was made on August 6th, thirteen days before the disturbance at the house, which preceded the arrest of Parks, and on the very day when he was told for the first time, as he says, while
The substance of this inquiry first appears on the cross-•examination of the state’s witness, Meyers; the subsequent prosecution of it occurs in the defence offered by Parks, and there is no force in any suggestion' of defect as to time or method in the putting of this question.
As already observed, the defendant Parks was not in possession of the premises at the time the offence is charged to have been committed by him, but he was an intending, or at least a possible, purchaser, and as such of course had an interest in the character and repute of the house.
If it could be shown that he closed his eyes to the circum,-stances or suffered in silence the doing of wrongful acts there, .an inference of participation might be drawn by the jury on this trial. If, on the other hand, it could be shown that he ■denounced the conduct of the occupants to themselves, or that lie complained of the guilty acts to the authorities of the borough, that, too, would certainly be proper matter for the ■consideration of the jury, who had a right to hear what he said or did, and to form their own conclusions upon the good faith and sufficiency of his objections and efforts.
That they might do this fairly to both parties to the inquiry, it was proper and necessary that they should be told just what the defendant did and said before the officers of the law had interfered.
An actual complaint made to the chief police official of the locality is more than a declaration of feigned or real sentiment ; it is an act, and the full significance of it can only be ascertained by an acquaintance with its terms. A mere statement that complaint was made “ concerning these premises ” is not enough. The jury had a right to know, in the interest •of the state as well as of the defendant, just what the complaint was, and what disorder was complained of, and with what seeming purpose; and the defendant, who claims that •the answer to the excluded question would sustain his defence, has every right to object to the fact that no answer was per
The question should have been allowed, and there was error in the exclusion of it by the trial court and in the subsequent sustaining of that exclusion.
The second matter of consideration is the allowance of a series of questions, upon cross-examination, put to the defendant, concerning a charge made against a police captain, in the city of New York, at a time not named, for not having complained against a house in that city owned by the defendant, which was claimed to have been a gambling-house.
No relation between that house and the house at Asbury Park was alleged, either by intercommunication, relation between principal and branch, identity of management or even eotemporaneousness of existence, and the questions put were solely in the nature of a partial trial, with insufficient evidence and ho defence, of the charge made against the police captain in' New York.
- The questions were clearly contrary to the principles laid down in the ease of State v. Raymond, 24 Vroom 260, and do not come within any of the exceptions to the general rule which are enumerated and defined by citations in the opinion in'that case. Nor do they come within the doctrine established, with copious references to cases, in the text-books of Roscoe and of Wharton on Criminal Evidence.
Nor was this testimony offered against the defendant, in his character as a witness, doubtful, as the offer would have been, but it was brought out, apparently, to operate as substantive evidence to prove in some way the offence alleged in the indictment.
' The allowance of these questions was clearly wrong, in our opinion, and constitutes a second error in these proceedings.
Both of these errors, we think, were calculated to seriously prejudice the defendant before the jury on the trial of the cause, arid are a- sufficient reason for reversing the judgment below.
For reversal—The Chancellor, Depue, Dixon, Garrison, Gummere, Lippincott, Magie, Van Syckel, Barkalow, Bogert, Dayton, Hendrickson, Krueger, Nixon. 14.
