State v. Williams

89 N.J.L. 234 | N.J. | 1916

The opinion of the court was delivered by

Garrison, J.

In a criminal case the record or judgment roll, as it is indifferently called, must show the issue (indictment and plea), tire presence of a court and jury, the verdict rendered by the jury and the judgment pronounced thereon by the court. Clifford v. Hudson Oyer and Terminer, 61 N. J. L. 493.

Between the last two of these essentials, i. e., the verdict and the judgment, the legal relation is such that the question whether or not the verdict justifies the judgment will be reviewed by an appellate court upon error assigned on sucli record.

In the present ease, in which such error is assigned, it is, to say the least, very questionable whether the record shows any verdict ai) all in the legal sense of that term. For the verdict is the definitive answer given by the jury to the court concerning the matters of fact committed to the jury for their deliberation and determination, a process in which not only must deliberation precede determination, but in which so long as the one continues the other has not been reached. Hence so long as the jury is in common parlance “agreeing upon its verdict” it has not convicted the defendant and the process of agreeing upon a verdict continues as long as there is any uncertainty or contingency as to the finality of such determination. This eminently practical distinction is illustrated in the verdict shown by the present record in which the conviction of the defendant so far from being definitely and unconditionally determined by the jury is expressly made to depend upon a contingent event of equivocal import upon which, however, the very agreement of the jury to convict the defendant is made to hinge. The state of mind thus evinced is inconsistent with the existence of a verdict; hence as long as such state of mind continues no conviction of the defendant has been reached and it is imperatively presumed on this record that such state of miud continued until the contrary is shown. Such state of mind therefore continued when judgment was pronounced since the contrary is not shown and quod non apparei non est.

The state of mind thus shown obviously appertains to the period when the jury is agreeing upon its verdict and not to that period when a definitive verdict has been unconditionally determined upon.

In this essential particular the present case is the exact opposite of State v. Overton, 85 N. J. L. 287, where the verdict was guilty of murder in the first degree with a recommendation to the leniency of the court. Such a verdict showed that deliberation was at an end and that a determination had been reached, the legal effect of which was passed up to the court. Here, on the contrary, the very agreement of the jury turned upon a contingency, which situation, so far as the record discloses, continued to exist when judgment was pronounced.

It is evident therefore that it is not the plaintiff in error but the state who must invoke the proceedings at the trial to eke out a record that is inadequate to support the judgment. But can either party do this in an appellate proceeding in which, in the language of this court: “The record of the court below is always conclusive evidence of all matters that are properly included in it and will prevail over incompatible statements appearing aliunde? If the record is wrong the remedy is to have it amended.” Morton v. Beach, 56 N. J. Eq. 791.

No motion to amend the record has been made and it is not perceived how such a proceeding could benefit the state, since a reading of the memorandum of the happenings at the trial in connection with the record returned to this court shows conclusively that whatever the court below may have said to the jury or the jury have said to the court the verdict that had been reduced to writing by the jury and handed to the court was the one the court decided to accept and that it was accordingly taken as the verdict of the jury and as such spread upon the record.

The amendment of the record by the judicial memorandum returned with the writ of error would not therefore, in the slightest degree vary the situation or overcome the inadequacy of the verdict to support the judgment that was pronounced thereon.

The judgment must therefore he reversed and the record remitted to the Somerset Oyer for a retrial of the indictment.

For affirmance—Tite Chancellor, Chiee Justice, SlVAYZE, TERHUNE, HePPENII RIMER, WILLIAMS, JJ. G.

For reversal—Garrison, Trenchard, Bergen, Minturn, Kalisch, Black, White, Taylor, Gardner, JJ. 9.