Kohl v. State

• Decision Date: 11 March 1897
• Parties: KOHL v. STATE.
• Court: New Jersey Supreme Court

37 A. 73

59 N.J.L. 445

KOHL

v. STATE.

Court of Errors and Appeals of New Jersey.

March 11, 1897.

Error to court of oyer and terminer.

Thomas S. Henry and Chauncey H. Beasley, for plaintiff in error.

Elvin W. Crane, for the State.

VAN SYCKEL, J. Henry Kohl was convicted in the Essex county court of oyer and terminer of the murder of Joseph Preinel. The evidence was purely circumstantial. There was a general exception to the charge of the court to the jury, which exception was allowed by the trial court. The motive imputed by the state to the defendant on the trial was that he murdered Preinel to secure possession of money which it was alleged he had upon his person. In my review of the case, I deem it necessary to call attention to that evidence only which relates to that subject. Martha Block, a witness produced on the part of the state, in her examination in chief testified that she said to the defendant "that it was funny that Preinel's gold watch was taken, and his money, if he committed suicide; and he said it was not a gold watch, it was a silver watch." On cross-examination of this witness the defendant's counsel very properly asked her the following questions: "Q. You spoke about him having money. Did you ever see Preinel with any? A. No. Q. How do you know he had any money? A. Henry's mother told me." And afterwards the witness said that the defendant's mother told her that he had $400 or $500. When the defendants counsel asked the witness how she knew Preinel had money, he had no reason to think that she would give an answer not responsive to the question. The answer was clearly incompetent, and it should have been stricken out if defendant's counsel had requested it to be done. No such motion was made, but the answer showed that the witness had no knowledge whatever that Preinel had any money in his possession or on his person. Her knowledge was mere hearsay, and entitled to no consideration whatever. The next allusion to this subject is in the testimony of George Breuckner, a witness sworn on behalf of the state. The prosecuting attorney asked this witness why he cut the clothes off the murdered man, and, after replying that they were saturated, so that he could not get them off. he was asked: "Q. What was the other reason? A. The other reason was Mrs. Kohl said he had $800 on his body." The court said: "That is scarcely competent evidence." The defendant's counsel said: "I don't think it is competent, your honor." The court said: "it is not. It may become so during the trial of the case; but, as it is now, it is not competent evidence." After the state had rested its case, Elizabeth Kohl, the mother of the defendant, was sworn as a witness on his behalf. On her examination in chief she was asked this question: "Q. At any time since the time Joe came there, did he show any large sums of money? A. No; never." That was all she testified to in her examination in chief on this subject. On her cross-examination by the prosecuting attorney the following questions and answers appear in the state of the case: "Q. You finally searched the trunk, didn't you? A. Yes; Sir. Breuckner said I should examine the trunk. Q. What did you examine the trunk for? A. Because it was said that the boy had money. Q. Who told you so? A. Plenty of people. Q. Lots of people told you so? A. Yes. Q. Didn't you know that he didn't have any? A. Joe had no money, only what he received from us. Q. A dollar on each Sunday? A. Father gave him a dollar on every Sunday. By the Court Do you say that everybody thought he had money? A. Yes; everybody said he had money. He had his property in his pocket." It is manifest that all this cross-examination, including the question by the court, was incompetent and illegal. On her examination in chief the witness was not asked whether Preinel had any money; all she was interrogated about, and all she said, was that he never showed any large sums of money. It was therefore no contradiction of her testimony that other people said he had money. It was the merest hearsay, and of no evidential value whatever against the defendant, but yet so prejudicial to the defendant's case that I cannot conceive why the defendant's counsel did not object to it, and have it overruled, unless he was misled by the question asked by the court, and therefore assumed that, in the opinion of the court, the case was in a situation which made it competent, as the court had said during the examination of Breuckner before referred to, that it might become competent during the trial. All this evidence of Mrs. Kohl as to what people said was hearsay, and could not lawfully have any weight against the...