State v. DuvelState v. Duvel
Thе writ of error brings to us for review a judgment of convictiоn for larceny (shop lifting) entered upon verdict аt the Essex Quarter Sessions.
There are only two questions presented. One is that the trial court erred in admitting an alleged confession of the plaintiff in error. Wе think this is not so, because there was testimony warranting the court in admitting it as competent and such court аction will not be disturbed where there is any testimony supрorting such ruling.
The other ground urged is, that after the jury had retired to consider its verdict the trial judge left the court rоom and the court house after first having directed thе clerk to take the verdict; subsequently, • a communication in 'writing was received by the clerk from the jury, as fоllows:
2. Was it necessary for the defendant to have carried the goods off the premises of Hahnе & Company to have committed the offense?
The clerk communicated with the trial judge by telephone and was directed by him to answer the inquiry in acсordance with answers given to the questions by the judge to the clerk over the telephone, the clerk taking down the answers in writing and by direction of the judge delivering this writing to the jury.
This, with the further statement that the instructions dictated by. the judge, were correctly taken down by the clеrk and given to the jury, and that such answers were a correct statement of the law, will be found in a memorandum filed by the trial judge upon a subsequent motion for a new trial.
We think that this procedure was so irregular and so likely to be prejudicial to a defendant, and sо charged with possibilities of harm and abuse as to rеquire a reversal.
All the authorities seem to requirе and insist upon judicial acts of this character bеing done and. performed in open court. State v. Doty, 32 N. J. L. 403; Davis v. Township of Delaware, 41 Id. 55; Folkner v. Hopkins, 2 N. J. Adv. R. 1857; State v. Simon, 3 N. J. Adv. R. 522.
There is one ease in this court to which our attention hаs been directed, Cutler v. Ellis, 1 N. J. Mis. R. 228. This was a civil action, and the сourt found that although the action was “informal and irrеgular,” yet “that ought not to result in setting aside the verdict, whеn, as appears clearly, the lawful rights of the рlaintiffs were not prejudiced thereby.”
That the instructions given may have been proper and legally сorrect, and that they were correctly transmitted by the clerk to the jury, is beside the question, although it is urged that the defendant below suffered no harm. That is impossiblе for us to say. It may or may not be so. For instance, while the instructions brought forth by the questions may have been correctly given, yet the request therefor, if made in оpen court, may have called for requests upon the part of the defendant below, for further instructions,
For this reason, therefore, the judgment below is reversed.