State v. Belkota

• Court: New Jersey Supreme Court
• Writing for the Court: WALKER, CHANCELLOR.
• Citation: State v. Belkota, 95 N.J.L. 416, 113 A. 142 (N.J. 1921)
• Decision Date: 28 February 1921
• Docket Number: 29
• Parties: THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. STANISLAUS BELKOTA, PLAINTIFF IN ERROR

113 A. 142

STATE

v. BELKOTA.

No. 29.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1921.

(Syllabus by the Court.)

Error to Supreme Court.

Stanislaus Belkota was convicted of assault and battery, with intent to carnally abuse, and his conviction was affirmed by the Supreme Court, and he brings error. Affirmed.

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

J. Henry Harrison, Prosecutor of the Pleas, of Newark, for the State.

WALKER, C. The plaintiff in error was convicted in the Essex quarter sessions of assault and battery, with intent to carnally abuse Mary Tylecki. A writ of error to the Supreme Court was sued out, and in that tribunal a per curiam was filed, which reads as follows:

"The writ in this cause brings up a conviction had on an indictment charging the defendant with assault and carnal abuse. The case was regularly placed upon the list at the present term, and on the first call it was agreed by counsel that it should be submitted on briefs. Counsel for the plaintiff in error, notwithstanding this agreement, has failed to furnish the court with any brief on behalf of his client. In this situation of the case the state is entitled to judgment in its favor. Supreme Court rule No. 102. It will be so ordered."

So much of the rule mentioned (102) as is applicable provides that if the party noticing the cause shall not bring on the argument the opposite party shall be entitled to a dismissal or a judgment in his favor, unless the court shall otherwise order. The court in this case chose to affirm the judgment of the quarter sessions, and Judgment of affirmance was accordingly entered in the Supreme Court. That judgment, drawn and entered by counsel, contains an inadvertent misrecital, for it states that, the cause having been duly submitted and the court having considered the matter and finding no error in the record, the judgment is affirmed, etc. It should have recited the default of the plaintiff in error as the reason for the affirmance.

Upon the judgment of affirmance in the Supreme Court, the defendant in error sued out a writ of error to this court, and again it was agreed that the cause should be submitted on briefs, and briefs by both sides were submitted. Notwithstanding the course taken by counsel, there is nothing before this court entitling the plaintiff in error to have the case considered here.

It has been repeatedly decided that a question not presented and argued in the court below will be held to have been waived and abandoned, and will not be considered in an appellate tribunal. State v. Heyer, 89 N. J. Law, 187, 192, 98 Atl. 413, Ann. Cas. 1918D, 284; Shaw v. Bender, 90 N. J. Law, 149, 150, 100 Atl. 196. But it is otherwise if the question goes to the jurisdiction...