85 N.J.L. 712 | N.J. | 1914
The opinion of the court was delivered by
The defendant was convicted of murder in the second degree. The evidence indicated that he com
As was said by the Supreme Court in this case (55 Vroom 6), this evidence was admissible, not as having any probative force to connect the defendant with the shooting, but as tending to neutralize, i. e., discredit, the adverse effect of Bisan’s unexpected testimony to the contrary; citing State v. D’Adame, Id. 386.
It is urged, however, that it Was the duty of the trial court to limit the scope of this evidence to this purpose and to warn the jury against permitting it to have any further effect.
In State v. D’Adame, supra, we said: “In fact, as a general rule it may be said that a trial judge admitting evidence of this character (and the admittance of such evidence is largely discretionary with him, depending upon the particular circumstances of each case), should, in any event, limit its force and effect to the purpose for which only it is admissible, viz., as tending to efface or neutralize the evidence which it discredits. He should also instruct the jury * * * that they are to entirely disregard it as in any way tending to prove the truth of the facts which it asserts. * * * In a case barren of other direct proof of
We feel that we cannot make this warning too emphatic. Evidence of this character is obviously extremely dangerous, and where a trial judge, in the exercise of his sound discretion, thinks its admission necessary in order to prevent a miscarriage of justice because of a “surprise” in the form of an adverse evidential statement on a material point where the party had good and sufficient reason to expect a favorable one, he should take adequate measures to prevent it from doing a much greater wrong than the one it was intended to cure. The very fact that men in their every day experiences constantly accept and rely upon, or reject and disregard, hearsay evidence, accordingly as the circumstances may or may not, in their judgment, tend to render it dependable, makes it perfectly natural that, when submitted to them as jurors, they should, if they believe it, accept it as evidential proof of a fact which it tends to substantiate. It is for this reason that there is linked with the discretion of the trial judge as to whether there is or is not a proper necessity for the admission of such evidence, a duty, if he does admit it, to circumscribe its natural effect to the one purpose for which only it is admissible. If it is apparent to him that there is no actual “surprise” and that the real purpose of offering the evidence is to get the benefit of hearsay testimony as having probative force; or that the injury resulting from the “surprise” is fanciful rather than real, he should refuse to admit the evidence; but where its admission seems to him necessary in order to guard against a miscarriage of justice, he should give ample warning against its consideration by the jury except for its limited purpose.
In the present ease no warning was requested and no warning was given. Nor in fact was any objection or exception noted because of the absence of such warning. This circumstance is in itself significant, and an examination of the facts of the case fully disclose the reason it evidently
Under these circumstances it is quite evident that no injury resulted from an absence of a warning as to the effect to be given the evidence of Bisan’s prior self-contradictory statements. Even if the jury might have considered these statements as evidential that defendant was the man who was in that basement at the time 'in question, it was quite harmless, because defendant admitted he was that man.
This fact, viz., the admission by defendant that he was the man who was in the basement with Glaser and Bisan at the time, very largely disposes of defendant’s other complaint, which is that the notes of testimony taken at the coroner’s inquest were permitted tó go out with the jury, and were injurious to the defendant, because in them some one is stated to have testified to identifying defendant as the man, thereby supplying hearsay evidence upon the important question of identity. When defendant admitted his identity on the stand the importance of this question vanished, and with it the injury complained of. Then, too, as was said by the Supreme Court, the notes of testimony contained nothing which was not testified to by the same witnesses at the trial.
The judgment is affirmed.
For affirmance — The Chancellor, Swayze, Trenohard, Parker, Minturn, Bogert, Yredbnbtjrgh, Congdon, White, Heppenheimeh, JJ. 10.
For reversal — None.