140 A. 566 | N.J. | 1928
We conclude that the judgment should be affirmed, and in the main for the reasons stated in the per curiam opinion of the Supreme Court, ubi supra. There are a few minor errors in that opinion which do not affect the result. The amiesite road mentioned is eighteen feet wide, and not one hundred and fifty feet as stated; no doubt what was running in the mind of the writer was the one hundred and fifty feet that defendant's car traveled after striking the two men. The statement that we have a statute declaring that driving of an automobile by a person intoxicated shall be a misdemeanor is incorrect. There was such a statute (Pamph. L. 1909, p. 200; Comp. Stat., p. 3442,pl. 36b) quoted in State v. Dugan,
The court might properly have charged the eighth request, that "to convict on the ground of negligence on the part of the defendant, there must be shown more gross and culpable negligence than is sufficient to render a defendant liable in a civil suit for not exercising that care which a reasonable and prudent person would exercise," but the refusal to charge it was not error or harmful, because the quantum of negligence necessary to justify recovery in a civil suit had nothing to do with the case.
The Supreme Court declined to consider the refusal of the twelfth, thirteenth, fourteenth, fifteenth and sixteenth requests as not properly assigned for error or specified as causes for reversal, in that the language of the several requests is not set forth in the assignments or specifications, but they are merely cited by number. The fourteenth was withdrawn and the fifteenth was charged. The others we have considered, notwithstanding the objection stated by the court below. The twelfth was charged, omitting the caution to exercise care before convicting on circumstantial evidence alone. This was properly omitted, as there was direct evidence of both defendant and Guerin tending to corroborate the circumstantial evidence. The thirteenth was fully covered in the charge, and the sixteenth was properly refused. The court had fully covered the subject of reasonable doubt, but the request assumed that the jury were ignorant of the basic principle of jury trials, familiar to the most ignorant citizen, that the verdict of a jury must be unanimous; it obviously aimed at an undue emphasis on the individuality of each juror, and ignored the duty of an interchange of views and an honest attempt to agree on a verdict. Counsel offers no authority to support such a request. We think the better view is to the contrary. 16C.J. 1028. *329
We incline to concur in the view of the Supreme Court that the assignments and specifications purporting to bring up refusals of requests to charge by number are irregular and insufficient. The proper practice in error is to draw assignments of error based on exceptions in strict conformity to the exceptions; and the rule is of long standing that the bill of exceptions should show the request, and either a refusal to charge on the subject at all, or what the charge on the point was. Petre ads. State,
The per curiam opinion of the Supreme Court fails to indicate that that court considered the weight of evidence pursuant to the act of 1921, although counsel claim that this point, which is duly assigned, was argued in that court. We have ourselves examined the evidence with care, and are of opinion that the evidence fully justified the verdict.
With respect to points not herinabove specifically discussed, we concur in the views expressed by the Supreme Court.
The judgment will be affirmed.
For affirmance — THE CHIEF JUSTICE, TRENCHARD, PARKER, BLACK, CAMPBELL, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 11.
For reversal — None. *330