96 N.J.L. 442 | N.J. | 1921
The opinion of the court was delivered by
The plaintiff in error was convicted in the Middlesex Ojrer and Terminer of murder in the first degree, and 'brings error into this court on a strict bill of exceptions. He was indicted jointly with his father and mother for the murder of Henry Kouphaupt. All three pleaded not guilty, were tried jointly, and the jury convicted Joseph, the son, of murder in the first degree, and acquitted Espara, the father, and Angelina, the mother.
In order to better understand the only exception argued some recital of the facts is necessary. They are succinctly stated in the charge of the trial judge as follows: “The state
The record discloses three assignments of error and specifies three identical causes for reversal. The latter are useless to the plaintiff: in error because the entire record of the proceedings had upon the trial was not brought up under section 136 of the Criminal Procedure act, at least, we do not know it, as there is no certificate that it is, and such is required when that act is invoked. See State v. Clark, 75 N. J. L. 473. There is only the usual return endorsed on this record. See State v. Fisher, 95 Id. 419. The defendant, however, is not harmed by the entire record of the proceedings had upon the trial not being before us for consideration, as he excepted to the supplemental charge, and that objection—the only one argued—is available to him on his strict bill of exceptions without the aid of the corresponding specification of cause for reversal under section 137 of the Criminal Procedure act. The exception is, that because the court, in answer to the jury’s question, “Can we bring in a verdict for some of the defendants for manslaughter,” charged and instructed the jury as last above set forth.
In Redhing v. Central Railroad Co., 68 N. J. L. 641, where the trial judge in one clause of his charge instructed the jury that plaintiff’s right depended upon his “honest belief” instead of his “reasonable belief,” a totally different thing, this court held that on the entire charge the jury must have understood the judge correctly. And so it is here, for in the main charge the judge told the jury that if the defendants were there aiding and abetting each other then they would all be equally guilty and it would not make any difference who fired the shot; and, again, that if the jury found that there was no agreement or combination, but that they were acting independently of one another, then they must determine each defendant’s guilt or innocence, as they found the truth to be.
The brief for plaintiff in error concludes with the assertion that the learned trial judge erred, because.the (supplemental) charge tended to preclude the jury from considering a distribution of guilt among the accused by not permitting them (the jury) to divide the culpability into different grades and degrees, and that it tended to preclude the acquittal of the plaintiff in error.
The judgment under review must be affirmed.
For affirmance — The Chancellor., Chibe Justice, Svvayze, Trenchard, Parker, Minturn, Ivalisch, Black, White, Heppeni-ieimer, Williams, Gardner, Ackerson, Yan Buskiek, JJ. 14.
For reversal—None.