147 A. 395 | N.J. | 1929
The plaintiff in error was indicted by the Morris county grand jury on three counts, the first charging him with assault and battery, the second, atrocious assault and battery, and the third, assault and battery with intent to kill. The jury returned a verdict of guilty as charged, and the court sentenced the defendant thereon. From this judgment the plaintiff in error sued out a writ of error to the Supreme Court, which affirmed the judgment under review. The plaintiff in error then sued out a writ of error to this court, and assigns an appropriate error that the Supreme Court should not have affirmed, but reversed, the conviction. This brings before this court all of the errors alleged in the Supreme Court, which were nine in number (and also nine reasons for reversal, which were identical with the errors assigned), if the plaintiff in error elected to argue them here.Burhans v. Paterson,
"If the cutting, the slashing, or stabbing was done by some other person, than the defendant, then you ask the question, whether or not you are satisfied from the evidence beyond a reasonable doubt, that the defendant was present, and aiding and abetting in the commission of the crime charged in the indictment? And after you have considered all of that evidence, and answered those questions, you will go further, and you will then take up the question of whether or not the defendant has satisfied you from the evidence he introduced that he was not present at the time and place charged by the state. *551
"The burden of proving the defendant's presence elsewhere than at the place and at the time charged in the indictment, is not upon the state, that is a defense which the defendant interposes, and his testimony, and all the testimony introduced on his behalf is put to you to say whether or not you believe it, because you are the sole judges.
"Now, if you believe from the evidence introduced in support of this alibi that the defendant was not present at the time and place charged by the state, then the defendant is said to have established his alibi, and you are the sole judges from all of the testimony so introduced, as to whether or not he has established to your satisfaction the proof that he was not present at the time and place charged in the indictment."
The state says that the plaintiff in error points out certain portions of the charge which place the burden of proof upon the defendant himself to establish his alibi beyond a reasonable doubt, and then itself points out certain portions of the charge favorable to the state, the principal one of which is as follows:
"The burden of so proving the defendant guilty rests upon the state throughout the whole case and never shifts. This rule is the ultimate one surviving all others, and it is an independent and final protection of the defendant, and notwithstanding all other presumptions and burdens, if any arise in this case, it remains upon the state until and after all the evidence is in, and then the jurors must consider upon all the evidence in the case, whether or not this burden has been sustained."
And the prosecutor further asserts that the charge must be read as a whole, and if on so reading it, it appears that the jury could not have been misled and the whole gives a correct statement of the law, the charge is sufficient. This, of course, depends upon what the charge is, and this court has spoken upon that subject. In Birtwistle v. Public Service Railway Co.,
So it will be seen that in these various cases the reviewing court always considers the particular matters charged, in accordance with the rule constantly laid down in the cases as the correct one, to ascertain whether the instructions are inconsistent, and, if so, the erroneous one should have been withdrawn, or whether, on the other hand, the whole charge *554 should have been read together, and the instructions are consistent one with another, on such reading and interpretation. And that is the test in this case.
Now, before deciding within which of these rules the case at bar comes, it will first be necessary to examine the law on the question of alibi, so as to see whether on the whole, harmonious or inconsistent instructions have been laid down.
In State v. MacQueen,
In the later case of State v. Parks,
In State v. Sahazian,
Referring now to the charge delivered, it is to be observed that the trial judge said, in effect, that if the jury were satisfied from (all) the evidence beyond a reasonable doubt that the defendant was present, c., then after they had considered all that evidence they would take up the question of whether the defendant had satisfied them from the evidence he introduced that he was not present. First the jury were told that if they should be satisfied from the evidence that the defendant was present beyond a reasonable doubt, they should then take up the question of whether he had satisfied them from the evidence he introduced that he was not present at the time and place charged by the state. The first instruction permitted the jury to find from all the evidence beyond a reasonable doubt the defendant's presence; and the second instruction was that the jury must be satisfied from the evidence defendant introduced that he was not present in order for him to have the benefit of the alibi he had set up as a defense. This was contradictory and erroneous, and *556 was never withdrawn. It could not but have misled the jury. The court charged that the burden of proving the defendant's presence elsewhere is not upon the state but is a defense and all the testimony introduced on the prisoner's behalf is put to the jury to say whether or not they believed it. This put the burden upon the defendant of producing evidence of an alibi which had to be believed by the jury, instead of an instruction to the effect that if that testimony alone created such a reasonable doubt in the minds of the jury as to his presence at the time and place of the crime, they should acquit him.
It is true, as claimed by the state, that the judge instructed the jury that the burden of proving the defendant guilty rests upon the state throughout and never shifts; that the rule is the ultimate one surviving all others and is an independent and final protection of the defendant, and notwithstanding all other presumptions and burdens it remains upon the state until and after all the evidence is in, and then the jurors must consider upon all the evidence in the case whether or not the burden has been sustained. This was a valid instruction, broad enough to include the alibi; but the error inhering in the charge is not withdrawn and it was left to the jury to choose which independent instruction they would adopt, whether the one favorable to the state, or the one favorable to the defendant. The instructions were inconsistent, and, as already remarked, the invalid charge was not withdrawn. It seems to us that it is only necessary to read the cases cited above on the question of inconsistent provisions in the charge where the incorrect instruction is necessarily to be read in connection with the whole charge in order to properly understand and interpret it, and the cases where the invalid instruction is not withdrawn, to show that there is error in the charge in the case at bar; and the cases on the subject of alibi, which clearly hold that the burden is never upon the defendant to establish an alibi beyond a reasonable doubt, but that if the testimony concerning it, in and of itself, raises only a reasonable doubt as to the presence of the defendant at the time and place of the crime the cause is not proved and the defendant is entitled to an acquittal. *557
Besides the excerpts from the charge set out in the briefs we have carefully examined the whole charge and reached the conclusion that the judgment of the Supreme Court sustaining the judgment of the Morris Quarter Sessions should be reversed, to the end that a venire de novo may issue.
For affirmance — None.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, KALISCH, LLOYD, CASE, BODINE, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 14.