Dissenting Opinion
(dissenting). The defendant was indicted in Passaic county for uttering certain inflammatory and seditious language, at a public meeting during the existence of a strike among the mill workers of the city of Paterson.
The act upon which the indictment is based is section 53 of the Crimes act. Comp. Stat., p. 1744. The issue presented was simple and plain, and involved only the single inquiry whether the defendant had given utterance to the language attributed to him. That such is the fact is conceded in the
The fact that some of 'these matters. were interpolated' in the case upon cross-examination under objection, does not lessen their importance as substantive proof in the case of the state. 'Upon an indictment for a criminal conspiracy such proof would be appropriate and material, but in this case its presence was not only immaterial and irrelevant, but manifestly must have been prejudicial to the defendant.
As the indictment alleges, for months anterior to the trial the community was severely distressed by the existence of a bitter strike among the mill operatives, in which the citizens perforce took sides. So notorious had the strike become that at its conclusion a federal investigating committee made inquiry into its causes and incidents. That, fact we must judicially notice. 1 Best Ev. 480.
In this social'ferment, the quiet, dispassionate and orderly exercise of the reasoning faculties was absolutely indispensable to the proper administration of justice.
The Supreme Court substantially confesses the illegality of the testimony, but avoids the logical result of its admission bj' characterizing it as harmless, a complacent assumption which ignores the atmospheric conditions under which the trial took place. How can it, with reason, be asserted that
It is not necessary for this defendant to show that he was actually harmed by such testimony. He is here under the one hundred and thirty-sixth section of the Criminal Practice act, and it is enough that the tendency of such testimony was to harm him, and that it may have harmed him. Ryan v. State, 60 N. J. L. 582.
Eepeatedly, tiie defendant, during cross-examination, was addressed as an I. W. W., until at one period he protested to the court; and throughout the case the defendant and his witnesses were subjected to an examination by the state under repeated objection by the defendant into the doctrines and tenets of their economic faith. Such a latitude of the right of cross-examination, it may be said, was subject to judicial discretion, and, in the absence of abuse, is not reviewable here. To this it may be answered that it was in no sense cross-examination, but was practically examination in chief, since the state alone elicited it over objection. But even the doctrine of judicial discretion, which in our books covers a multitude of forgiven errors, contains its limitations. It must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness, or to impeach his moral character. 1 Rice Ev. 586; People v. Oyer and Terminer, 83 N. Y. 436.
Under different auspices, a jury might be immune to the
Eor these reasons this judgment should be reversed and the defendant tried de novo.
For affirmance—The Chancellor, Garrison, Swayze, Trenchard, Bergen, Black, Bogert, Vredenburgh, White, Terhune, Heppenheimer, Williams, JJ. 13.
For reversal—Minturn, J. 1.
Lead Opinion
The judgment under review herein should be affirmed for the reasons expressed in the opinion delivered by Mr. Justice Kalisch, in the Supreme Court.