State v. Arthur

• Citation: 70 N.J.L. 425,57 A. 156
• Parties: STATE v. ARTHUR.
• Decision Date: 23 February 1904
• Court: New Jersey Supreme Court

57 A. 156

70 N.J.L. 425

STATE

v. ARTHUR.

Supreme Court of New Jersey.

Feb. 23, 1904.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Hudson County.

William Arthur was convicted of violation of the crimes act, and brings error. Affirmed.

Argued June term, 1903, before GUMMERE, C. J., and DIXON, HENDRICKSON, and PITNEY, JJ.

Weller & Lichtenstein, for plaintiff in error.

William H. Speer, for defendant in error.

PITNEY, J. The plaintiff in error was convicted of a violation of section 58 of the crimes act of 1898 (P. L. 1898, p. 810), as amended in the following year (P. L. 1899, p. 215). The indictment charges that he "did knowingly, willfully, and unlawfully have in his possession certain papers, documents, slips, and memoranda, which said papers, documents, slips, and memoranda then and there pertained to the business of lottery policy, so called." He assigns error upon certain rulings of the trial court with respect to the admission of evidence, and also upon the denial of a motion made for the defendant's dismissal on the ground of want of evidence. The case comes before us upon a common-law bill of exceptions.

The first exception relates to a ruling of the court admitting Patrick Hayes, who, as captain of police, participated in defendant's arrest, to testify as an expert to the effect that certain papers found upon the defendant when arrested were policy slips, and pertained to policy. The objection was that Hayes was not qualified to testify as an expert. Before receiving the opinion of this witness, the trial court had permitted him to be examined respecting his qualification. He testified that during his experience of over 30 years upon the police force he had many times been brought into contact with such papers and documents as the ones in question. An expert may be qualified by study without practice, or by practice without study; but mere observation without either is insufficient. Wheeler & Wilson Co. v. Buckhout, 60 N. J. Law, 102, 36 Atl. 772. The question whether a given witness has the necessary special experience to qualify him to give opinion evidence is a question of fact for the determination of the trial court. The authorities agree that the admission of a witness thus to testify as an expert is largely in the discretion of the trial court, and that its decision is final, unless shown to be erroneous in law. If there be any legal evidence to support it, the finding is not erroneous in law, and is not reviewable on common-law writ of error. Castner v. Sliker, 33 N. J. Law, 95; N. J. Zinc Co. v. Lehigh Zinc Co., 59 N. J. Law. 189, 194, 35 Atl. 915; Elvins v. Del. & Atl. Tel. Co., 63 N. J. Law, 243, 247, 43 Atl. 903, 76 Am. St. Rep. 217; 8 Encycl. P1. & Pr. "Expert Witnesses," p. 749. The decisions in Penna. R. R. Co. v. Root, 53 N. J. Law, 253, 21 Atl. 285, and Laing v. United N. J. R. R. & Canal Co., 54 N. J. Law, 576, 25 Atl. 409, 33 Am. St. Rep. 682. are not opposed to the rule just stated. There being evidence from which the trial court could fairly decide that the witness Hayes had the requisite experience to qualify him, the first exception is unfounded.

The second exception raises the question whether it was the proper subject of opinion evidence to permit the officer to testify that the slips and papers in question were such as pertained to policy. This...