Clark v. State
| Decision Date | 30 November 1885 |
| Citation | 47 N.J.L. 556,4 A. 327 |
| Parties | CLARK v. STATE. |
| Court | New Jersey Supreme Court |
On error to the supreme court.
J. J. Crandall, for plaintiff in error.
R. S. Jenkins, for defendant in error.
The plaintiff in error was indicted for selling lottery policies. The first count in the indictment charged that the said Clark did receive from one Fannie Jordan certain money, in consideration of which he unlawfully promised and agreed to pay her a certain sum of money upon the event of her drawing certain numbers in a certain lottery then set up and opened in certain state lotteries, and thereafter drawn in the state. The second count charges that he received money from a certain person, to the grand inquest unknown, upon a similar understanding. There was a conviction upon the first count.
The first and second assignments of error are grounded upon the permission granted to the counsel for the state, in the face of an exception, to ask Fannie Jordan, a witness for the state, whether she had seen other persons than herself buy of the defendant; and, secondly, to ask the names of those persons.
The first count, as already stated, charged a sale to Fannie Jordan. She had, when placed upon the witness-stand, mentioned the fact of a sale to herself. The state was privileged, under the second count, to also prove a sale to some one other than the witness. For the purpose of showing that there were sales to persons other than she, the first question was relevant; and for the purpose of fixing the identity of the particular person with whom, in respect to such sale, the state wished to fix the defendant under the second count, the second question was equally relevant. Thus far there was no error.
After the witness had, in answer to the second question, given the name of a Mr. Matthews as one of such purchasers, the state desisted, so far as appears by the record before us, from pursuing the matter of the sale to Matthews. The state then called two other witnesses, Carter and Rice, each of whom swore to a sale to himself. The counsel for the defendant moved to strike out the testimony of Carter on the ground that it related to a distinct offense from that sworn to by Fannie Jordan. The testimony of George Rice, so far as it related to the fact of the sale to himself, was not objected to, and the legality of its admission is not before us for review. The error alleged to arise by the admission of the evidence of Carter is that, after the state had proven one sale under the second count to one Matthews, it was permitted to prove a second distinct sale to Carter. The rule of evidence upon which this assignment is founded, is entirely settled. As a general rule, the state, for the purpose of showing that the defendant would be likely to commit the crime charged, cannot prove that he committed other crimes, although of a like nature. But. recognizing the force of this rule, I yet think that the defendant has not shown error in the record before us.
In the first place, the testimony of Carter, so far as the record informs us, was all in before the objection to it was taken. It does not appear that there was not an opportunity afforded to the counsel for the defendant to have made his objection earlier. The rule is established that counsel cannot take the chance of testimony making in his favor, and if it happens to be adverse, then interpose his objection. There is nothing to show that the defense here was not apprised of the point upon which the witness was about to speak, before his testimony relative to the sale to himself was delivered. The testimony being so in without objection, it cannot be said that the court erred in not striking it out.
In the second place, it cannot be claimed that because a witness has spoken of one transaction the state is precluded from proving, by the same or other witnesses, that the offense charged was a different transaction. It is not unusual, in the progress of a trial, for a witness to commence to detail the circumstances of a transaction, and it turns out to be a different assault or larceny from that charged. The state has the privilege, as soon as the distinctness of the matter in the mind of the witness from the matter in the indictment is apparent, to abandon the former, and proceed to prove the latter. This applies to all cases where the state has unintentionally been placed in this posture. Where it is obvious that the above course of procedure is for the purpose of prejudicing the interests of the defendant, by...
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State v. Nagy
...although of a like nature, for the purpose of showing that defendant would be likely to commit the crime charged. Clark v. State, 47 N.J.L. 556, 558, 4 A. 327 (E. & A. 1885). For on the trial of a person for one crime, evidence that he has been guilty of other crimes is irrelevant. Wigmore ......
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State v. Bartell
...that he would be likely to commit the crime charged. Informative decisions in our jurisdiction on the subject are Clark v. State, 47 N.J.L. 556, 4 A. 327 (E.&A.1885); State v. Raymond, 53 N.J.L. 260, 21 A. 328 (Sup.Ct.1891); Meyer v. State, 59 N.J.L. 310, 36 A. 483 (Sup.Ct.1896); Leonard v.......
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State v. De Paola
...accused's commission of the crime charged in the indictment on trial. State v. Raymond, 53 N.J.L. 260 (24 Vroom 260), 21 A. 328; Clark v. State, 47 N.J.L. 556 (18 Vroom 556), 4 A. 'The question admitted against objection was plainly improper. It called for a response as to a mere charge of ......
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State v. Fay
...crimes, although of a like nature, for the purpose of showing that defendant would be likely to commit the crime charged. Clark v. State, 47 N.J.L. 556, 558, 4 A. 327. For on the trial of a person for one crime, evidence that he had been guilty of other crimes is irrelevant. State v. Raymon......