State v. Belkota
| Decision Date | 28 February 1921 |
| Docket Number | No. 29.,29. |
| Citation | 113 A. 142 |
| Parties | STATE v. BELKOTA. |
| Court | New Jersey Supreme Court |
(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.
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:
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...
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State ex rel. Wm. Eckelmann, Inc. v. Jones, M--74
...not argued there will ordinarily not be noticed here, but may be if they involve jurisdiction or public policy. See State v. Belkota, 95 N.J.L. 416, 113 A. 142; State v. Snell, 96 N.J.L. 299, 114 A. 416. But, as above remarked, the jurisdictional question of defective title of the act under......
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Le Coney v. Koch
...A. 139; Kleinert v. Hutchinson, 98 N. J. Law, 831, 121 A. 742; Thompson v. East Orange, 94 N. J. Law, 106, 109 A. 340; State Y. Belkota, 95 N. J. Law, 416, 113 A. 142. The same cases hold that a mere repetition of the assignments or grounds of appeal in the Supreme Court, or the addition he......
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State v. Leaks
...not they have been raised below. State v. O'Leary, 110 N.J.L. 36, 163 A. 904; State v. Forman, 97 N.J.L. 168, 117 A. 50; State v. Belkota, 95 N.J.L. 416, 113 A. 142. And this, as has been said, is a matter involving public policy. The evidence in question, even though later expunged by the ......
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State v. O'Leary
...A. 50; Mahnken v. Meltz, 97 N. J. Law, 159, 116 A. 791. The Court itself may notice these questions even if not raised. State v. Belkota, 95 N. J. Law, 416, 113 A. 142. Passing now to the substantive question, the court below, in making the order complained of, departed from an ancient prac......