80 N.J.L. 21 | N.J. | 1910
The opinion of the court was delivered by
The plaintiff in error was indicted by the grand jury of Essex county for the murder of his wife, the specific charge being that he intentionally set fire to her clothing, or caused fire to be set thereto, thereby producing her death. The trial upon this indictment resulted in his conviction; the verdict being that he was guilty of murder in the second degree. We are now asked to set aside that conviction because (as it is alleged) of injurious errors committed by the trial court in its rulings upon evidence, and in the charge to the jury.
Two assignments of error are directed at rulings upon evidence. The first of them challenges the action of the trial court in refusing to permit one White, a witness produced upon the part of the defendant, and who admitted on his cross-examination that he had been convicted in the Essex Oyer and Terminer on an indictment for criminal conspiracy, to testify that his conviction was illegal. The first section of our Evidence act (Pamph. L. 1900, p. 362) provides that no person offered as a witness in any action of a criminal nature shall be excluded by reason of his having been convicted of crime, but permits such conviction to be shown on the cross-examination of the witness, or by the production of the record thereof, for the purpose of affecting his credit. The object of the legislature in permitting the conviction of a witness to be shown upon his cross-examination is, manifestly, to relieve from the necessity of producing the record thereof when the witness himself admits it. Whether the conviction is proved in the one way or the other, however,
The second assignment of error, which challenges the legality of a ruling upon evidence, is directed at the exclusion of testimony showing that the defendant, at .the time of his wife’s funeral, looked upon her dead body, touched and kissed it. Tt would seem from the argument submitted to us by counsel that this testimony is thought to have been legally admissible because such acts of the defendant were evidence of the existence of Jove for his deceased wife during her life. Admitting this to be so, the defendant’s act was significant only because by it he inferentially declared that his wife held his affection while she was living. If he had so stated in words, at the time of his wife’s funeral, that statement would clearly have been inadmissible, by reason of the elementary rule which excludes self-serving declarations. A declaration to he inferred from conduct falls within the same rule. People v. Rathbun, 21 Wend. 509, 519; Voorhees v. Hen
The first assignment of error, which is directed at the charge to the jurjq challenges the soundness of the following instruction: “There is a rule of criminal law that everybody is-presumed to be innocent; the law does not presume anybody to be guilty. That goes through every case; it goes through this case. If you come to the conclusion, however, as a result of your deliberation, that there is°guilt proved— any degree of criminality under this indictment—of course that presumption of innocence cannot stand after that. It does exist up to that time, and unless you do find there is guilt that presumption of innocence would entitle him to a verdict of acquittal.” The contention of counsel for the defendant upon this assignment is that the presumption of innocence exists until the jury has arrived at a verdict; in other words, that it continues after the jury have determined the fact that the' defendant is guilty, and until they have also determined the degree of his guilt; and the complaint is that the instruction does not conform to this principle. We think the language used by the court bears the construction put upon it by counsel; but we find no error in the instruction. In this state the defendant in an indictment for murder is presumed to be innocent until he is found by the jury to be guilty of a criminal homicide. When the jury have reached that conclusion, then, under the law as administered in this state, the presumption immediately arises that the crime of which he is guilty is murder in the second degree. Brown v. State, 33 Vroom 666. This latter presumption being absolutely antagonistic to that of innocence necessarily destroys it. There is no merit in this assignment.
The next assignment of error is directed at the following excerpt from the charge of the court upon the right of the defendant to the benefit of a reasonable doubt: “In order to warrant a conviction for any crime under this indictment, the state must prove the facts sufficient for that purpose by evidence beyond a reasonable doubt. A reasonable doubt would exist when the judgment of the jury, after a careful
The next assignment of error is directed at the following instruction contained in the charge to the jury: “The presumption in all cases of criminal homicide is that it is murder in the second degree. The burden is on the defendant to show facts in mitigation which might reduce it down to manslaughter, and there is nothing in the case of the kind. The reason for it is perfectly evident, because the defendant denies that he was guilty of setting fire to her. They have not offered any evidence to reduce or mitigate such action, because they deny that it was done, so you do not have to
Jt is further contended that this instruction was erroneous because there was no evidence in the case to justify a finding by the jury that the defendant set fire to his wife’s clothing with intent to produce her death. It is enough to say, for the purpose of disposing of this contention, that we find in the case proof of circumstances which support this conclusion, and there was consequently no legal error in submitting this question to the jury for its consideration.
The next specification argued on behalf of the defendant is that the trial court erred in not directing the jury to render a verdict of acquittal on the charge of murder. This specification is almost too frivolous to be commented upon. In the first place, no request for such an instruction was submitted on the part of the defendant to the trial court. Error can be assigned only upon instructions actually given by the court to the jury or instructions refused to be given upon request. And this is so whether the case comes up for review either on strict bill oí exceptions or on a general review provided by the one hundred and thirty-sixth section of our Criminal Procedure act. In the second place, on the case made by the state the question whether the proofs showed the guilt of the defendant of the crime of murder beyond a reasonable doubt, was one to be determined by the jury, not by the court.
The next assignment of error discussed by counsel challenges the correctness of the charge of the court with respect to dying declarations. On this subject the court said (referring to a statement testified to by witnesses called by the defendant as having been made by his wife, a few hours before her death, and exonerating him from responsibility for it): “I admitted that statement as a matter for me to pass upon in the first instance. It is now for the jury to say whether
Other errors have been assigned or specified on the record. They have not, however, been considered by counsel for the defendant of sufficient importance to justify discussion before us, and our examination of them satisfies us of the soundness of his conclusion.
The judgment under review will be affirmed.