Lamble v. State

• Decision Date: 20 June 1921
• Docket Number: No. 1.,1.
• Citation: 114 A. 346
• Parties: LAMBLE v. STATE.
• Court: New Jersey Supreme Court

114 A. 346

LAMBLE

v. STATE.

No. 1.

Court of Errors and Appeals of New Jersey.

June 20, 1921.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Union County.

Harold V. Lamble, alias George Brandon, was convicted of murder in the first degree, and he brings error. Affirmed.

Frank M. McDermit, of Newark, for plaintiff in error.

Walter L. Hetfield, Jr., of Plainfield, and Donald H. McLean, of Elizabeth, Prosecutors of the Pleas, for the State.

BLACK, J. The plaintiff in error was convicted of murder of the first degree, without a recommendation by the jury that the punishment be imprisonment for life. He was found guilty of killing Edith Janney on August 21, 1918, in the vicinity of West Milton avenue, in the city of Railway. Her companion, a man named Arthur Kupfer, was killed at the same time. The plaintiff in error and Charles Perchand were jointly indicted for the crime. When the trial of the case was moved the prosecutor of the pleas applied for a severance. This was granted, over the objections of the plaintiff in error. The purpose of the severance was to qualify Charles Perchand as a witness for the state against the defendant. This is the first specification of a cause for reversal and the first assignment of error. There are, in all, 51 assignments of error and 26 specifications of causes relied upon for reversal, under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863). We have made a critical anamination of the record and a careful consideration of the alleged errors, with the result that we find no error or injury done the defendant at the trial that leads to a reversal. We think the judgment should be affirmed. It would serve no useful purpose to discuss at length the alleged errors and specifications of causes for reversal in detail. Those, however, which seem to call for some discussion are these:

First. The error assigned on the order of the trial court directing the two persons accused should be tried separately. This point requires no discussion. The court has already said, in the ease of Roesel v. State. 62 N. J. Law, 219, 41 Atl. 408, the power of the court to order several accused, charged in the same indictment, to be tried separately is well settled; so, in State v. Baum, 64 N. J. Law, 410, 45 Atl. 806, it was said it was within the discretion of the trial court to grant separate trials, when two are jointly indicted. So it has been decided the trial court may properly grant a severance for the purpose of permitting one of the defendants, who has pleaded to the indictment, to become a witness on the part of the state on the separate trial of his companion in guilt State v. Brien, 32 N. J. Law, 414. In that case this topic is fully discussed by Chief Justice Beasley in an elaborate opinion, in which he reviews the English and American authorities. State v. Graham, 41 N. J. Law, 15, 32 Am. Rep. 174; Noyes v. State, 41 N. J. Law, 418. We have considered this alleged error, as if objection had been interposed, when Perchand was called to the stand as a witness. It cannot properly be raised under an objection to a severance.

The next contention is, the trial judge erred in refusing to permit the plaintiff in error to examine jurors, when called, as to their qualifications, without first interposing a challenge for cause. It is not denied that, prior to 1911, the law in New Jersey has been settled, ever since the time of Chief Justice Kirkpatrick, in 1824, to the effect that, before, examining a juror on his voir dire, the defendant was required to interpose a principal challenge or a challenge to the favor. State v. Zellers, 7 N. J. Law, 220, 223.

The soundness of this mode of procedure is forcibly vindicated by Chief Justice Magie, speaking for this court in the case of Clifford v. State, 61 N. J. Law, 223, 39 Atl. 721. But it is argued the statute (P. L. 1911, p. 220; Comp. Stat. Supp. p. 840) has changed the law on this point. But our reading of the provisions of the statute appealed to satisfies us that it has application on this point only to civil cases. True it is, the first section of that statute provides that challenges for any cause whatever, in any action or suit, civil or criminal, in any court of this state, may be made at any time before the juror is actually sworn. The next two sections refer to civil suits or actions. The words in section 3 "such peremptory challenge," manifestly refer to section 2; i. e., a civil suit or action in any court of this state. The first section is a copy of the act. P. L. 1887, p. 132; 3 Comp. St. N. J. p. 2978. par. 43a. The remaining sections were added when the statute was passed by the Legislature in 1911. Clifford v. State, 61 N. J. Law, 217, 39 Atl. 721. was followed by this court, as late as 1919, in the case of State v. Palmieri, 93 N. J. Law, 199, 107 Atl. 407. There was no error in the ruling of the trial court on this point.

Next, it is argued it was harmful error to exclude on the cross-examination of the witness Charles Perchand the following question:

"At the time you gave the statement in writing to Galation, of the prosecutor's office, did he tell you that the defendant here had told him that you were the man that had committed that crime?"

It is argued by the plaintiff in error that this question was proper cross-examination. The answer of the state, is that it was immaterial what was told to the witness Perchand at the time he gave the statement in the prosecutor's office, as no reference to the statement was made in Perchand's direct examination. The statement itself was not offered by the state, or referred to in any way. The record shows the witness was subjected to a searching cross-examination, in the course of which these questions were put to the witness:

"Q. Don't you know that Brandon had written from Auburn prison a letter to Galation, in the prosecutor's office, in which he charged you and your brother and Steve with the murder at Rahway; don't you know that? A. I don't know anything of the sort.

"Mr. McDermit: I will put Galation on the stand. I have got the letter.

"Q. You were informed at Auburn prison that this man who was in Auburn prison had written to the prosecutor's office of Union county, charging you and your brother and Steve with the commission of this crime? A. I was not.

"Q. Never knew that? A. I was not informed.

"Q. You never knew that he had written a letter from the Auburn prison charging you people with this murder; is that right? A. I never knew that.

"Q. Did you ever hear it before I told you now? A. I don't believe he has ever written a letter of that kind.

"Q. Did you ever hear it before I told you now? A. No."

It may be conceded that the rejected question was competent, and proper on cross-examination either to show the mental attitude of the witness or for the purpose of contradiction, to affect the credibility of the witness by showing his answer to be untrue. But both of these purposes have been accomplished by the testimony above referred to. It is difficult to see how the defendant could possibly be injured. We think this was not legal error. What Chief Justice Beasley said, speaking for this court in the case of Hunter v. State, 40 N. J. Law, 343, is pertinent. In addition to the existence of error in law, it must be shown that such error was or might have been prejudicial to the defense on the merits—citing paragraph 89 of the Criminal Procedure Act, now a part of section 136, and the case of Donnelly v. State, 26 N. J. Law, 463.

The next contention is with...