69 N.J.L. 619 | N.J. | 1903
The opinion of the court was delivered by
The writ of error brings up for review the conviction of the plaintiff in error of the crime of murder in the first degree and a consequent judgment thereon in the Court of Oyer and Terminer in the county of Mercer.
The plaintiff in error has caused the entire record of the proceedings had upon his trial to be returned under the provisions of section 136 of the Criminal Procedure act of 1898. Pamph. L., p. 915. Pie has, however, specified as the causes for relief or reversal required by section 137 of that act no other matters than such as were likewise presented by assignments of error.
In behalf of the plaintiff in error, the argument is first directed to an alleged error of the trial court in the admission of a question put to plaintiff in error when under, examination as a witness in his own behalf.
The rule of the common law which excluded a person indicted for crime from testifying in his own behalf was first altered in this state by a supplement to the act concerning witnesses, approved February 15th, 1871. Pamph. L., p. 12. It
The record and the bills of exceptions show that the plaintiff was indicted by the grand jury and thereby charged with the crime of murder and put upon his trial in the Court of Oyer and Terminer, and that he therein offered himself as a witness in his own behalf and was admitted to testify. The point now made is presented by the exception, duly sealed, to the admission of a question over the objection of the plaintiff in error.
The objection to the question was made upon the ground that it was not competent cross-examination. That objection is now supported in argument on the ground that the admission of the question violated the well-settled doctrine which prohibits a person accused of crime from being compelled to testify against himself.
By the fifth amendment to the constitution of the United States it is, among other things, provided that no person shall
It is not deemed necessary to consider whether this constitutional provision will operate to prevent any state, if it is conceivable that any state should desire to do so, from enacting laws establishing a practice in criminal cases such as is in vogue in countries not following the course of the common law, or permitting an accused person to be subject to such compulsion as may be exerted by harassing examination or other means, forcible or practically forcible, compelling him to testify against himself, or to prevent the adoption by any state of a practice which might produce that effect.
Although we have not deemed it necessary to insert in our constitution this prohibitive provision, the common law doctrine, unaltered by legislation or by lax practice, is by us deemed to have its full force. In New Jersey, no person can be. compelled to be a witness against himself.
But this privilege, with which every individual is clothed for his own protection, is one that may be waived. When one voluntarily admits the commission of crime or facts tending to justify an inference of the commission of crime, his voluntary confession is always admissible against him.
When a person charged with the commission of crime offers himself as a witness in his own behalf, under laws permitting him to do so, he undoubtedly waives his protective privilege to some extent. He becomes a witness, and as a testifying witness he may be cross-examined. How far such cross-examination may extend does not require consideration in this case, and we do not intend now to indicate the limit to which such cross-examination may properly be extended. Nor is it deemed necessary to consider what compulsion may be applied to require answers to proper questions asked of such a witness in cross-examination. In the State of New York, in which this privilege of the accused person is pro
It is sufficient to dispose of the' contention in this regard in this case to note two grounds upon which it is deemed ineffective.
In the first place, if the question asked was within the line of proper cross-examination, it cannot be claimed to be compulsory in character. Whether, if the witness had refused to answer, the court could have compelled him to do so, or whether, upon such refusal, the court could have struck out his evidence given on his direct examination, or otherwise exerted a compulsory power, is not, therefore, before us.
In the second place, the counsel of plaintiff in error does not contend that plaintiff in error was protected from any cross-examination. On the contrary, the claim is that, being properly subject to cross-examination, the court should have limited his cross-examination to matters previously opened in his direct examination. The contention is that the accused may thus limit the scope of his examination and cross-examination, and that the question objected to was not competent, because not within matters respecting which he had testified on his direct examination.
I repeat that we do not deem it necessary and do not intend to pronounce upon the propriety of this limitation upon cross-examination of a defendant who offers himself as a witness in his own behalf. If, when thus called, he should limit his testimony to a mere denial of the commission of the crime, it may be well made a question whether, upon cross-examination, his mind and conscience may not be searched as to all pertinent facts relied on by the state for conviction. But the question does not arise in this case.
Upon the direct examination of the plaintiff in error he was asked, and answered, many questions as to his conduct and whereabouts on a certain Sunday preceding the discovery of the dead body of the person he was charged with killing. The evidence had tended to show that plaintiff in error was the last person seen with the deceased on that day, and that the deceased had probably been murdered and brutally mutilated on that day. After his direct examination, in which the plaintiff in error had voluntarily answered such questions as to his conduct and whereabouts, he was turned over to the prosecutor for cross-examination. The question of the prosecutor deemed to be improper, and which was excepted to, was this: “What clothes did you have on on that Sunday afternoon?” This, we think, was admissible cross-examination upon matters brought out by the accused’s direct examination. As part of his conduct, and tending to elucidate Ms whereabouts on that particular day, a question as to the clothing worn during that period with respect to which he had been examined, was pertinent and competent to be asked in cross-examination. The question was properly admitted.
The excerpt of the charge relied on in this assignment of error is in these words: “This does not mean that every doubt must be dispelled; it does not mean, as indicated by counsel, that every possible hypothesis of innocence must be excluded by the evidence.” Yiewed by itself, this excerpt plainly indicates that it was used with respect to the subject of reasonable doubt, the benefit of which must be given to the person accused of crime, and thus viewed, no error appears therein. An hypothesis of innocence which it may be possible to conceive, may be utterly unreasonable to act upon. A fantastic, unreasonable hypothesis of innocence will not justify a jury in finding a reasonable doubt. That this was the plain intent of the trial court is rendered entirely clear by the context. The judge, in immediate connection with the excerpt excepted to, proceeded to charge thus: “What the law refers to as a reasonable -doubt is such a doubt as would exist if the jury, after a careful review of all. the evi
The next question raised is to that portion of the charge of the trial court defining the crime of murder in the first degree. This was the language of the court: “In order to constitute murder in the first degree, and to justify a conviction of that crime, it must appear by evidence, beyond a reasonable doubt, not only that there was an unlawful killing, but that the defendant intended to take the life of the deceased, and that the intent was carried into execution willfully, deliberately and with premeditation. The term ‘willfully/ as here used, means the same as intentionally, the inquiry being, did the defendant intend to take the life of the deceased? The next inquiry is, was the killing done deliberately and with premeditation? By ‘deliberately’ and ‘premeditation/ however, the law does not mean that any particular length of time need intervene between the formation of the purpose to kill and its execution. It is not necessary that the deliberation and premeditation should continue for a day, or an hour or a minute. It is enough that the design to kill be fully and clearly conceived in the mind and purposely and deliberately executed.”
Counsel asserts that this definition was adopted from the opinion of this court in the Donnelly case, the decision of which, in the Supreme Court, is reported under the title Donnelly v. State, 2 Dutcher 463, and, in this court, under the same title, in Id. 601.
It is claimed that the definition given in the Donnelly case has been overruled or explained in this court, so as to indicate the error which is now alleged. The case in this court thus
The quotation, in the opinion, from People v. Majone, 91 N. Y. 211, to the effect that, to constitute murder in the first degree, a design to kill must precede the killing by an appreciable space of time, was not designed to indicate that the careful definition of murder in the first degree approved in the Donnelly case was defective with respect to the time required for deliberation and premeditation, but rather to express the importance of that part of the definition which required that the design to kill must be fully and clearly conceived and purposely and deliberately executed. The conception of such a design and its deliberate execution necessarily takes some appreciable time. It was in this language that the charge before us was framed, and I deem it unobjectionable. Time sufficient to fully and clearly conceive the design to kill, and purposely and deliberately to execute it, satisfies our statute, and this assignment of error cannot prevail.
The fourth assignment of error, which is the last relied on, is based upon the fifth, sixth and seventh requests to charge, all of which were refused. Counsel abandons,-as-untenable, any objections founded upon the sixth request.
A trial court is not bound to charge in the language of requests presented, if it has already charged sufficiently and unobjectionably upon the subject. We think the trial court charged the law on this subject correctly, and that there was no error in refusing the requests for a further charge on the same subject.
On the whole case, no legal error is found pointed -out by the assignments in error, and no manifest wrong appears to have been done to plaintiff; in error entitling him to relief or reversal.
The judgment must therefore be affirmed.