*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW BUNK, FREDERICK ROBERT AND JELLISON CLAR SMITH, ENCE DEFENDANTS-APPELLANTS. Argued January 3, Decided April 1950.
See also
Mr. Gilhooly argued Smith. Minará, Jr., State, for the
Mr. E. cause Duane argued on the Mr. 0. William Caruso Mr. R. Giuliano and James brief. of the court was delivered
The opinion virtue appeal, J. This defendants’ Oliphant, VI, Constitution, V, from and Rule 1:2—1 Art. par. (c), (c) § their entered in the Court County following Essex the first without of murder in conviction by degree do, im- Court, required it was recommendation. sentence. posed death adduced, have found the from the evidence could
The jury, Bunk, Jellison together facts. Defendants following de- indicted with these with Yanuzzi who was jointly one the time of who had not been at apprehended but fendants 7, 1948, a tavern trial, at August met on the afternoon they picked another tavern where Smith. up proceeded of the afternoon and evening All spent greater part four in Newark “look- various taverns places together visiting likely place over” with view most selecting them ing After decided they a holdup. midnight at which to stage *5 the attempt of the “Perm. Tavern” because few holdup people were there at time. the
. Jellison drove car the it a short distance from parked the tavern with its motor then The defendants running. discussed for the and the plans the executing robbery part each was to take it. Jellison, in to the plan agreed according in car upon, stayed the for the of the purpose making getaway. He owned used in were which guns holdup, kept his car for the purpose robberies. committing
Smith, Bunk Yanuzzi, entered following plan, At tavern. their drew and Smith signal they went guns room shuffleboard which was from the bar separated aby room Here partition. Peter Newcomb was shuffle- playing with board his brother Frederick. Smith announced it as holdup, a scuffle ensued between him and Peter whereupon Newcomb which the latter was shot and killed during bullet from the 32-caliber in the Smith. gun hands Smith scuffle also was and his skull After shot fractured. the shots in the shuffleboard or ten shots eight room other fired in were Bunk tavern. Following shooting Yanuzzi ran from tavern to ear and Jellison’s parked Smith was taken to Newark escaped. Hospital, Bunk City was arrested in early 14th Newark morning August and Jellison was arrested in the early morning August Mass., 18th in Haverhill, to which fled. city he had It is it asserted was error on the the trial part to have denied a for court motion at acquittal the close of the case because the did State’s indictment with Rule 2:4—11. form comply The indictment was R. prescribed the statute 2:188-11. It was S. held State, Graves v. N. J. L. A. an (E. & 1883), that if indictment murder is sufficient it defendant charges wilfully, feloniously did and with malice kill aforethought and murder the deceased. Where several defendants are with murder actual participants dur charged robbery killing which the indictment ing perpetrated, charging sirffieient, murder of the statute without language *6 accessories, and as or as defendants principals the charging the crime. as of State robbery part forth the setting without Juliano, & A. L. 1927). N. J. (E. v. or
Rule 2:4-11 “The indictment accusation provides shall a of the essential facts constituting be written statement the and is The defendants directory. offense charged" merely have misled or in could not been main possibly prejudiced they the of indictment. If their defenses form the taining to their had not considered it specific enough properly prepare for. defenses, of could have been applied bills particulars Buie 2:4-14. court, when trial
Each defendant claims error because the dire, alleged voir made an jurors were examined on their being killed the that if deceased was erroneous statement of law: con- a in person, third not concert having acting defendants, would be they guilty nections with nevertheless of murder in the first degree.
We determine this legal proposition are called upon consider, judge but to the remarks trial assuming that not the law, the whether or were an erroneous of exposition statement error. constituted reversible
Defendants that the remarks of the trial stated argue judge, panel, times the of the presence jury numerous in the the infected were and so completely so gravely prejudicial cured not be of the whole trial could they atmosphere aby charge. proper remarks the of complained
When was made to objection now," no on that said, point the “I am making ruling Court the a will decide when we jury, finally get jury, “The them," concerned, I the law case, law is as as far the give of the form question and “I will allow State put to instruct upon I do not feel called contention. its at time." I will do it the proper now the law is. what (cid:127) expressed if the of the law as it was Even Court’s view their voir dire was erroneous of on jurors in the examination remarks those cured withdrawal express it was Parks, 96 N. J. 360 (Sup. jury, its State Vliet, 120 N. Ct. 1921); 1938); J. L. (Sup. where it said: you “During' drawing were tile this while some you legal box and while some others of in the court room were argument place. time between counsel and Court took At robbery expressed attempted during I view if of this the course person, patron tavern, gun used third such as a drew gun repulsing doing accidentally to aid in the robbers and so killed person, persons robbery guilty attempting another would be degree killing. murder first Ike my study “Since that time further this statute and of law expressed has convinced me that the view I then was an erroneous Consequently, any possible misunderstanding- view. in order avoid subject, expressly on I withdraw that assertion and instruct those *7 you disregard who heard it to it. killing through firing “If the of Peter Newcomb came about the by resisting person attempt robbery of a shot a third in at person defendants,
that third had no connection with these then under they guilty the statute are not under tile indictment he must acquitted.” We cannot agree that the minds jurors had become so saturated with the alleged erroneous rule legal that it could not be eradicated therefrom under the circumstances exhibited here, or by the remarks there was prejudice to defendants in their defenses on maintaining the merits.
Smith also asserts there error committed was in in impanelling the voir dire examinations the State was permitted ask questions to elicit information as to whether the prospective juror would return first degree if murder verdict the facts showed was done killing attempting commit and whether robbery, juror would be dissuaded he such a verdict if bringing knew would be The penalty death. contention made such ques is tions excluded fact the im recommend life might prisonment.
A wide latitude is allowed counsel in voir on the examining dire and the State was well within its It had a rights. for the ask death and to penalty as to inquire prospective juror’s attitude of that respecting imposition penalty; to contend that the evidence it upon produce expected the crime was of such atrocity jurors’ verdict be should Juliano, without recommendation. supra; State v. Favorito, 115 N. J. L. & A. no There (E. 1935). error here. there, contended,
Was as error prejudicial per Berardinelli, Dr. mitting Assistant Medical Examiner Essex County, to express to the caliber of the opinion bullet which by the State contended the deceased was killed P think not. He We was examined by Court in addition to examined counsel as to his being qualifications. Who is entitled to be as an qualified expert concerning question science or skill cannot be determined by any rule. precise must left to the discretion of the trial largely to be judge determined him from the facts the nature of the case. His decision conclusive unless shown to be erroneous as a matter of law. New Jersey Zinc Co. v. Lehigh, N. J. L. & A. (E. 1896). evidence admitted was well within the Court’s discretion.
Erom all the evidence we find the Court justified the confessions admitting of all the defendants. We are satisfied the evidence was sufficient to amply the find support of the trial court that ing they were made and not voluntarily extorted by threats of violence or by any direct or implied promise to some relating benefit to be derived the accused in the criminal prosecution. determining admissibility *8 of a statement or confession made an accused the test is whether or not it made, State, was voluntarily Roesel v. 62 Pierce, N. J. L. 216 & A. (E. 1898); State v. 4 N. J. 252 and the (1950), decision of the trial court on this question not, will a rule, be disturbed on when appeal there is suf Cole, ficient evidence to it. support State v. 136 N. J. L. Pierce, 606 & A. State v. (E. 1947); supra. While Bunk and Jellison claim were they threatened, beaten, questioned and not were advised of their unremittingly constitutional were uncorroborated and such rights, they evidence was nega other was proofs. Opportunity tived afforded them when of their they complain confessed treatment. A disinterested 470 and answer his question citizen was
impartial present he Bunk treated “all Jellison said stated had been right,” said their statements were Both “very good.” voluntarily and that them promises they without threats or signed made voluntarily. the defendants were answer to the argument the law over the advised their rights privileges
not that a person only in this State has been entitled to years defense, him from aid him in to save his counsel to- his acts, 87 N. J. L. 515 & Murphy, v. voluntary (E. own State Cole, cautionary such instruc 1915); supra, A. State v. step are not establishment the fact tions essential Hernia, 68 N. J. voluntary. State v. L. confession is Cole, Pierce, & A. v. v. 1902); supra; 299 State State (E. supra. it had before it the confessions
When the considered and it thereto could have believed them facts all the relating fit. While the Court on passed them as it saw rejected do, the required jury passed as it was competency, their under the of the court went credibility on their voluntariness, their an advan further and determined even law does not bestow. the defendants State v. tage Cole, & Foulds, J. A. v. 1941); supra. 127 N. L. 336 State (E. Indiana, 93 49, Watts v. 338 on U. S. rely Defendants Carolina, 1347; Harris v. South 1434, 69 Ct. Sup. Ed. 1440, 1354; Ct. Turner Sup. 93 L. Ed. v. 68, U. S. 1352; Ed. 62, 93 L. Ct. Sup. 338 U. S. Pennsylvania, N. J. 540 (Sup. 1949), Cooper, asserting due because of process a denial of “fundamental there involuntariness of the and the alleged confessions. unfairness” on the exhibited in particular decided cases were facts Those must be. In those instant one United States each, as based on lack of holdings cases'the were due Court Supreme and, facts as was said in the uncontroverted Watts on process Indiana, supra: during here the last decade from come cases that have all the “In states, in which it claimed various courts *9 vitiated for murder there of coerced convictions admission confessions complete agreement testimony as to has been that conflict actually this what led to contested confession is not Court's concern. authoritatively adjudi- by the Such conflict comes resolved State’s here only cation. Therefore those elements of the events circumstances unquestioned which confession was involved that are happened are State’s version of what relevant constitutional issue here.” Okla., 596, Court in 322 U. Supreme Lyons S. 1481, 1208, Ed. Ct. Sup. its following holding Lisenba v. California, 219, 166, 314 U. S. 68 L. Ed. 62 Sup. Ct. 280, said are when conceded facts exist which only freedom, irreconcilable with mental of the regardless contrary facts, conclusions of the would it triers assume responsibility the state deciding against findings courts “due under the Fourteenth Amend involving process” ment of the Federal Constitution.
We said “It v. Cooper, cannot supra, that a doubted confession induced moral com by physical nature, j” whatever has pulsion, its no evidential efficacy we reaffirm that but reaffirm the we also principle, principle confession freely not induced voluntarily given or fear or other consideration the substitu hope leading tion of than the truth is admissible in evidence. else something
True, these were arrest war confessions made after without 10th rant and Smith confessed prior arraignment. August 24th after been and was arraigned August having discharged was 14th, from the Bunk arrested confessed hospital. August 23rd, 16th and while Jellison arraigned August August 18th, 19th and was was arrested confessed August August unremit 23rd. There no protracted arraigned August held, has never been except Upshaw ting interrogation. States, 129, 93 L. Ed. 335 U. S. Sup. United detention, obtained 170, that confession during illegal e., i. before a imme prisoner without taking magistrate dispatch, is inadmissible for or with reasonable diately in of its voluntariness. case alone That regardless reason Procedure, a Federal Rule Criminal the violation of volved *10 4?2 A.,
Rule 18 U. S. C. not a state rule or statute. That 5(a), Court, decision 5-4 of the bywas a vote the majority following their construction of the decision of that Court in the McNabb case, 819, Four 318 U. S. Ed. Ct. 603. Sup. dissent, justices, a felt that the McNabb case lengthy for not a confession obtained authority holding such a held solely should invalidated for restraint not be during illegal that reason. Mr. Justice Reed for said: minority during “II confessions obtained unlawful detention not excluded are constitutionally guaranteed alone, the fact of unlawful detention rights protected by of the accused are nevertheless the rule that no involuntary unnecessary confession is admissible. is therefore protection constitutional reasons to extend this evidence obtained through procedure by a violation of statute a or rule criminal those trials, to whom the confession is made. In criminal the method of obtaining barring except evidence has never a been reason for its use rights where constitutional were violated.”
The arrests and of these arraignments defendants bejore occurred the effective date of our rules, new 'but giving full 2:3—3, force to Rule which provides that an accused be before arraigned the nearest without magistrate unnecessary delay, or statement confession made accused not ipso inadmissible solely by reason of the violation of that fado procedural rule. The test remains, still statement or confession Pierce, voluntarily made? State v. supra. Neither does the failure to follow the rule due violate process under the Fourteenth Amendment the Federal Constitution even though it abe violation of might due process under the Fifth Amendment and the federal statutes implementing rules applicable to criminal in the United proceedings States Courts.
Jellison contended at the trial that on the night murder he suffered from or syncope blackout and that spell he was unable to distinguish between or right wrong know the nature and consequence acts, of his and he complains the trial erred in that judge portion his charge with dealing the defense of and of insanity his refusal to charge specific request thereto. relating fact defendant’s tes-
Notwithstanding neurologist he tified could no to whether not defendant give opinion at could between the time of distinguish wrong commission of crime and that the condition of de- fendant was one which is described as medically insanity, was submitted: request following language you mental, physical pre-existing “If find that of a because neurological prior condition defendant K. Robert Jellison alleged commission of the crime unable to was rendered form intent *11 robbery design killing incapable deliberating or to commit a or a or of design, incapable appreciating on such a or of the nature or conse- quence distinguish wrong, right of act or his to between and he then acquitted.” be must
The trial to the re judge, although refusing charge a quest, gave lengthy, adequate complete with charge respect the doctrine of insanity as well as covering implications which be inferable from the might properly type of disease defendant claimed he was from. suffering need not be the exact charge language requested and there is no if error the subject matter of the request be charged Juliano, and fully covered the court. State v. by supra; Tansimore, v. State 3 N. J. 516 (1950).
Defendant extracts two short sentences from the entire on charge insanhy, and asserts error in that the thereby court stated that was a temporary insanity not defense. Those sentences read as follows: “The law as a regards insanity of disease the mind fixedness and implying continuance of mental condition. rejects It therefore the doctrine what is called emotional insanity, which on the eve of the begins criminal act and ends when it is consummated.”
One two sentences may short be extracted from a and construed without charge regard to context of the Banusik, 84 entire State v. N. J. L. 640 & charge. (E. A. Tachen, v. 92 N. J. L. 1906); State (Sup. 1919); affirmed, 93 N. J. L. 485 & A. Tansimore, (E. 1919); State v. supra.
Certain taken sentences alone need some charge may them render accurate if amplification such amplifica- misled, cannot be so that the jury tion be context given Frank, 90 N. J. error reversal. State there is no justifying & A. L. 718 affirmed, (E. 91 N. J. L. 78 Ct. 1917); (Sup. Tansimore, 1918); supra. 130 N. J. Lynch, case of State v.
Although same containing precisely & A. 1943), charge (E. aof the trial judge with a denial when coupled wording, be defense, whether it -insanity that was request error, be character, was held to- permanent temporary in his charge indicated elsewhere the trial here judge plainly was mental condition the defendant if reason of any that wrong between rendered incapable distinguishing crime he should commission at time of the case trial Lynch The error in the acquitted. defense. The as a legal did not recognize insanity court “If, at the time of the holds: shooting, case opinion accused, temporary insanity, incapable reason with respect wrong between right distinguishing he act, of murder. Unless was conscious he is not guilty do, was a lack of he not to there it was an act which ought criminal responsibility.” moral or in his charge: included the following Here the trial judge *12 crime Jellison of this alleged “If find that on the you night that so pros- or after a or effects sequela suffered blackout him mentally incapable to render trated his mental faculties as then he should robbery, to commit a an intention of forming that a reasonable doubt beyond unless find you -acquitted, faculties to prior or recovered his he his faculties had and gave execution of the to rob plan began when the time thereto.” his consent is error found in the case Lynch that the
It is apparent of. respects complained no error in here and we find present refusal was error in the further claims there Jellison defin himby a submitted request trial court to charge there was no error in the second degree. Clearly murder ing since, under the and the theory upon facts in such refusal tried, defendant either guilty the case which homicide was not of any murder in the first degree guilty what was whatever, and this is precisely charged. Bunk the trial erred in
Defendant says judge denying him, to as by certain submitted requests charge gist cop them must come unanimous that the to an being jury a elusion as to whether defendant is to suffer the death penalty. with the the Court
Instead of complying requests charged: and comment “The Court has no no to make power any or offer advice with to the recommendation con- any respect The statute. matter rests templated by entirely solely discretion after consideration your your of all the evidence.” Cordasco, here
The was raised question State presented there was 1949), N. J. that case (Sup. though said, here. no to as there was that case we request Molnar, language largely from 133 N. J. L. taken : A. 1945) 327 (E. & not an character of the sentence is issue trial. “The for The issue and, always, only proof guilt
is or innocence relevant to that issue statutory punishment degree The for is admissible. first murder is only subject death, that to the condition in its absolute dis- imprisonment life; cretion chooses recommend at hard labor made, however, except that recommendation shall not be after con- by incorporating all sideration of of the evidence and the recommen- guilt. arise, dation in verdict of If that condition does not death, penalty by jury, statute, determined not but pronounced say the court. is not correct im- poses the sentence of death where it does not choose make the imprisonment; just recommendation for life as it would not be correct say imposes penalty merely the Court Pardons a death grant pardon it does not because commutation.” And knowledge “It is fundamental and of common in crimi- verdicts
nal cases must be determined unanimous vote.” for murder in the penalty imposed first degree is death, R. 2:138-4, S. when verdict is returned it is assumed it is the unanimous vote of the If jury. there is doubt *13 of this it can always be verified by polling jury, as was case, juror in which each procedure respective
done this responsibility answers in his own and assumes the there- our correctness of the verdict. Following procedure, fore, the for crime provided penalty Legislature having ver- follows the rendition of the penalty naturally upon statute, dict of if the decides under the guilty. Again, jury the limited extent per- defendant to give clemency mitted can their they by statute verdict attach such can at- recommendation. Before that recommendation tached upon it must be agreed unanimously words, else it does not become effective. In other the purpose fixed to determine guilt, punishment being is enactment, and that be im- must punishment legislative unless the their verdict dis- posed juiy by make contrary it Before that can be made position. contrary disposition must be or else the death agreed upon by jury unanimously therefore error in the attaches. We see no court’s penalty in this respect. There anis abundance of proof support the verdict make the record to verdict to be nothing appear evidence so as to rise against weight give inference that it was result of passion, prejudice Hauptmann, State v. N. J. L. 412 A. partiality. (E. & Cole, Cordasco, 1935); supra; State supra. have examined the We other carefully points raised but find them without merit and not of sufficient substance to require discussion. error, no under review affirmed.
Perceiving down of this opinion postponed pending handing new of defendants’ motion trial on determination evidence and the on the discovered decision newly ground in an therefrom, is set forth filed as of opinion which appeal herewith. even date I find J. error the refusal to (dissenting).
IIei-ier, Bunk, the defendant there could requested by charge, verdict of murder the first not be an unqualified degree
477 unless the punish- were unanimous on and jury guilt capital ment.
It is the the accused in a case absolute criminal right to the have instructed on a law jury distinctly principle issue; material re to and a refusal to a specific the the unless the quest reversible error embodying principle is subject matter has been v. De substance. State charged Geralmo, Barone, 83 L. N. J. 135 v. 1912); Ct. State (Sup. Genese, 96 N. L. J. 417 Ct. v. 102 N. J. State (Sup. 1921); Haines, L. 134 & A. 103 J. L. 534 (E. 1925); State v. N. Larsen, Ct. v. 105 N. 266 (Sup. (Sup. State J. L. 1927); Rusnak, 1931); Ct. 108 L. A. 1929); State v. N. J. 84 &(E. v. State 118 N. J. L. 429 Capawanna, Ct. (Sup. 1937); affirmed, 119 L. N. J. & A. v. 1938); Gregory, State (E. 120 N. J. L. 326 Ct. The “a (Sup. to distinct 1938). on the charge” pertinent matters to becomes fixed inquiry when a im timely is “One of the most request interposed. the duties of court declare the portant applicable is to law ato case to when jury the so to do. This should requested done in such asway be leave room for misapprehen State, sion or mistake.” Roe N. J. L. 49 (Sup. 1883).
It would there seem be fundamental the statute be as to unanimity both a verdict guilt before punishment of murder in first can returned degree jury. The legislative purpose plainly assign jury determination which of alternative question of punishments established, should be exacted is guilt where thus to temper the strictness and old law. severity would not abe realistic of the statute appraisal so to construe as to expression permit a in the first murder finding stand, degree unmodified of life im recommendation prisonment death, and so sufficient to sustain where the are on issue of divided punishment. sentence
principle mandatory death was abandoned L., 576, 1916. P. c. 270. p. Eollowing decision of the Martin, old Court of Appeals Errors N. J. L. 436 & A. the Act amended to 1919), provide (E. death in the first “unless murder penalty degree after thereof, verdict, shall and as part upon its im life evidence,” recommend of all the consideration mandatory. life imprisonment which case prisonment, 303, 134; obvious now R. 2:138-4. The P. c. S. p. *15 the of on an issue by action the jury of the statute is policy of the the final The are made arbiters jury utmost gravity. of in terms specific There is no punishment. requirement can before a verdict on both and punishment unanimity guilt in there a the rendered; language be neither is suggestion the if punishment that a of shall entail capital finding guilt alleviation the Under penalty. be not unanimous on the of jury act, arbitrary dis 'the the were vested with jury original amendment, cretion; under the the exercise jury N. J. v. 2 and discretion based on the evidence. State Cooper, 540 The of the a function penalty remission death is (1949). made known the Their action is jury. by committed by form of verdict—remission a recommenda and content the such a failure of by tion of life imprisonment; contrary but choice there recommendation. The choice jury’s; is be, must the action must be unanimous.
The unanimity jury of verdicts criminal requirement itself; cases as ancient as the institution and a construction is of that would sustain a ver- finding murder as a first-degree sentence, dict for the death where there want was a calling unanimity is on the jury punishment, as that is ex- unless plainest principles insupportable purpose in clear and terms. normal unambiguous pressed rule course, is the as to all within unanimity matters Mr. in- by As said Justice Reed in case jury’s province. a similar federal statute: “A verdict embodies in a volving all jury upon the conclusions single finding ques- States, Andres tions to it.” v. United 333 S. submitted U. 880, L. 740, There, 68 Ct. 92 Ed. 1055 (1947). S. Court ruled that the statute required unanimity unanimously as to guilt punishment. both common-law
479 of a unanimity attribute the verdict in criminal cases I, was reaffirmed and Article 9 secured paragraph of the Constitution of 1947. Co. See American Publishing Fisher, 464, 618, 166 U. S. Ed. 1079 S. H. (1897); Gerry, 495, N. A. 272 (1896); also, 24 L. R. A. 43 L. R. 78.A.
Is not the it does the question punishment, as involving death, of life and so identified power intimately statute with the issue basic to constitute an part guilt integral of that can issue which resolved before a verdict must be it returned? Can be that the intended Legislature sentence, as to to sustain the unanimity guilt sufficient death even but jurors all one of the had in a though concurred recommendation life under the imprisonment? Surely, statute a could juror refuse concurrence in a verdict guilty, without if sentence qualification, convinced death should not be seem imposed. It would to be of the essence policy the issue of statutory juror considering not be guilt should “influenced consciously unconsciously *16 the of the of crime knowledge finding guilt charged will entail a which in is not mandatory his penalty opinion justified by the of moral of the Each degree guilt accused. juror should know that the not now of finding guilt carry does penalty unless the fails to make a recom mandatory jury mendation of life imprisonment a of the and part verdict each juror know of should that he is one the who twelve judges shall decide the what verdict shall be in all its Until parts. the twelve have on judges verdict, of the agreed every part Hicks, they have not on verdict.” agreed People N. E. 482, Y. 38 N. 2d A. L. R. 1222 The (1941). a of its phrase “as verdict” was deemed part of this significant Lehman purpose. continued: “The trial Judge court has read the into statute a by implication proviso that a must jury a verdict of which the upon will have effect agree guilty, first of the accused to death and then recommend condemning may life as of verdict if imprisonment part jurors the all the only to recommend life That not agree imprisonment. justified is measure large the of the statute would language still jury
defeat its
Under
construction
plain purpose.
to death
the
of
defendant
must face
choice
the
condemning
agree
or
him free unless all twelve
thereafter
jurors
letting
go
That construction
a recommendation of
upon
clemency.
whether a recommendation
the fact that
the choice
ignores
part
of life
should or should not be
imprisonment
until
is left to the
and the verdict is incomplete
verdict
jury
that the Legis-
all have
That construction assumes
agreed.
of life
death
juror
lature has confided to
the choice
single
an accused.”
York’s
like ours. So
for
New
statute is
is
Court there said: “The
Mississippi’s.
Supreme
province
entire,
as to their verdict is
should
jury
they
agree
of the
innocence of
and as
as to the
the accused
to the
guilt
both
State,
if he
Green v.
The did not the rule of the statute charge Indeed, construed. made no mention of Judge as thus he declared provision, After stating act. this of the phase comment any to make “no no that he had power con- the recommendation with respect ox offer advice solely entirely rests That matter this statute. templated by discretion, after a consideration and in your in your judgment a different had is clear Judge all the evidence.” of read If the provision rule. statutory conception The accused error is it, conspicuous. I conceive then the make certain that would entitled to instructions specific meaning the sense precise the jury’s comprehension case, Frankfurter said Mr. Justice Andres act. of a the conduct “No part the function of charge: judge. task upon presiding a heavier criminal trial lays which probably the whole trial part is that It should jurors. influence upon the weightiest exercises subjected have been jurors after their understanding guide stiff the relevant deflection from to confusion and counsel.” partisanship de novo and award venire reverse
I would to each defendant. a new motion for that the subsequent
I join holding sustained evidence was not discovered newly trial proofs. Vanderbilt, and Justices Justice For affirmance—’Chief Burling—5.
Case, Oliphant, Waci-ieneeld Heher—1. reversal—Justice For