State v. Spallone

| N.J. | Mar 6, 1922

The opinion of the court was delivered by

Parker, J.

The case is submitted on the brief of the plaintiff in error, none being filed for the state. So far as the brief before us touches on points dealt with in the per curiam of the Supreme Court, we consider that deliverance adequate and adopt it as expressing our reasons for affirming the judgment. Counsel calls attention to one or more isolated sentences contained in the two-page extract from the charge discussed, by the Supreme Court and claims that they must have been overlooked because .they are not quoted in the per curiam. This, however, misses the point of the decision, which is that the court of review will not reverse because a part of the charge assigned for error may contain a faulty proposition, so long as it also contains “matters the soundness of which cannot be legally challenged.” To put it in another way, the assignment of error, or cause for reversal, must point out specifically the erroneous proposition or ruling and be substantially limited to that. State v. MacQueen, 69 N. J. L. 476; State v. Rubertone, 89 Id. 285; *224Engle v. State, 50 Id. 272. The statutes permitting a general exception to the charge in criminal cases, and dispensing with the necessity of exceptions when the entire record of proceedings at the trial is brought up (Criminal Procedure act, sections 136, 141), have not operated to sanction generality and indefiniteness in assignments of error or causes for reversal, and properly not, as common, fairness to counsel for the state requires that he be apprised with precision of the points intended to be argued.

.After the affirmance in the Supreme Court, the legislature passed chapter 349 of the laws of 1921 (Pamph. L., p. 951), which was considered by us in State v. Knight, 96 N. J. L. 461, and permits the plaintiff in error to “assign for error” that the verdict wa's against the weight of evidence. Such an assignment has been filed in this court, and without reference to any technical questions arising out of the dates of the judgment, of approval of the act and of the writ of error from this court, has been considered on its merits. Our examination of the evidence satisfies us that the verdict was not against the weight of evidence, and, consequently, the judgment will be affirmed. It may be well to note that the point that no witness to the good reputation of the complainant was produced, is without substance, because such testimony would have been incompetent; and that as to the failure to show that she complained of the assault, evidence of .what she said to her doctor and others was excluded on defendant’s objection, though competent except as to details. State v. Ivins, 36 Id. 233, cited in State v. Schaeffer, 87 Id. 663; State v. Shupe, 86 Id. 410.

For affirmance— The Chancellor, Swayze, Tren chard, Parker, Minturn, Kaltsch, Black, White, Heppeniietmer, Williams, Gardner, Acicerson, Van Buskirk, JJ. 13.

For reversal — None.