The opinion of the court was delivered by
The case as argued before us exhibits principally an effort to review by writ of error and reverse the action of the trial court in refusing to award a, new trial to the defendant, Comstock, on the ground of newly-discovered evidence. Comstock and three others, named Harris, Baird and Green, were jointiy indicted for conspiracy to clefrarrd a fire insurance company, by a false claim of Hire loss under one of its policies. Harris'and Green pleaded non vuU; Baird- and Comstock stood trial, each having his own counsel, and were both convicted. The date of conviction was about the end of October, 1918. In Jauuaiy, 1919, a motion for new trial on behalf of both was made, on the ground of newly-discovered evidence; testimony was taken, and the court having taken tinie to consider the matter, in May, 1919, denied the motion, whereupon Baird went to jail to serve his term. The court was asked to seal an exception to this refusal, and declined to do so. This denial of an exception, and a'similár denial about a year later, are the subjects of an application for a mandamus to the court to seal the exceptions,
The real question — if it may he fairly called a question.— is whether this court as a court of review in matters of law, aiding in the exercise of its common law powers, will review the action of the trial court in dealing with a motion for a new trial on the ground of newly-discovered evidence. ~We have no hesitation in answering it in the negative. That the action of the trial court in such case is discretionary is elementary law. Hoban v. Sandford & Stillman Co., 64 N. J. L. 426. It is also an accepted general rule that the discretionary action of a criminal court will not be reviewed on strict writ of error. State v. Riggs, 92 Id. 575, 576, and eases cited. In Kohl v. State, 36 Atl. Rep. 104, not officially reported (a temporary phase of the case in 59 N. J. L. 445), the Court of Errors and Appeals, in holding that affidavits used before the trial court on a motion for new trial could not be used under
This brings us to the alleged- trial errors. The first urged is that the testimony of Officer Stadlman as to the uninjured condition of certain furniture on the premises some months after the date of the alleged fire, coupled with that of Harris, should have been excluded as immaterial. Whatever its probative force, it was not immaterial; for it could be considered as tending to show that no fire had taken place. It is claimed that the court commented on it as corroborative of Harris’ main testimony of the conspiracy, and that as the Stadlman testimony was necessarily linked to that of Harris, it was not corroborative. The answer is that the court made no such comment, but merely said the officer “described the closet and indicated its dimensions.” The comment preceding and following this remark refers entirely to testimony of Baird, as a reading of the charge will show.
The next point is that the record of the fire department should not have been used as a basis of the testimony of witness Bender. But the only objection made applied simply to the probative force of the evidence, as was pointed out by the court at the time. This was no legal objection; and even under section 136, where there is no objection or request by counsel, there is no ruling for review. State v. Hummer, 73 N. J. L. 714; 81 Id. 430; State v. Warady, 78 Id 687; State v. Sweet, 81 Id. 250; State v. Murphy, 87 Id. 515.
The next ruling complained of is that the court, on re-ex-ami nation of the witness Green, permitted an answer to the state’s question as to why he sent Comstock a certain check for $100. This is riow challenged on the ground that the answer tended to show Comstock’s guilt of another crime. Perhaps it did; but the state’s question was plainly justified
The court charged, largely in the form requested by defendant, that the jury might lawfully convict on the uncorroborated testimony of an accomplice, but that such testimony should be considered with great caution, and later added: “Whether there has been corroboration sufficient to satisfy you is, of course, for you to say.” This is now attacked as erroneous, in assuming a condition of the evidence which did not exist. It was not erroneous if there was any legally corroborative evidence in the case. Counsel claims there was not. The claim rests, in part, on the alleged elimination on the motion for new trial of the theory, apparently theretofore justified on the evidence, that Comstock had taken part in sending on the proof of loss before the company had instructed him to attend to the matter. But, naturally, if, at the time of delivering the charge the state of the evidence justified such comment, it was not erroneous. Furthermore, we think there was evidence which the. jury could consider corroborative, apart from the circumstance just alluded to; and that some of it will be found in defendant’s own testimony on cross-examination. Baird had the run of liis. office; and Baird testified that some months after the payment of the
The judgment will be affirmed.
It follows that the application for mandamus- to seal the exceptions will be denied; and, as the outbranches sought to be brought up by the application’for certiora/ri were printed with the case on error and could in "no way affect the result in that case, allocatur of the certiorari is denied also.