State v. Briley

Decision Date31 March 1969
Docket NumberNo. A--66,A--66
Parties, 36 A.L.R.3d 811 STATE of New Jersey, Plaintiff-Respondent, v. John Lee BRILEY, III, Defendant-Appellant.
CourtNew Jersey Supreme Court

Claude J. Minter, Asst. Deputy Public Defender, for appellant (Peter Murray, Public Defender, attorney).

Michael R. Imbriani, Somerset County Prosecutor, for respondent.

The opinion of the court was delivered by

FRANCIS, J.

Defendant John Lee Briley was charged by indictment with the murder of Benjamin Reaves, Jr. and with the commission of an atrocious assault and battery upon Paulette Briley, defendant's wife. Since the offenses arose out of a single event, they were joined in individual counts of one indictment. Defendant's pretrial motion to sever the counts and to try them separately was denied. A jury trial resulted in a conviction of manslaughter and atrocious assault and battery, followed by imposition of concurrent sentences of 7 to 10 years imprisonment on the homicide count and 3 to 5 years on the atrocious assault and battery count. Appeal directly to this Court followed under the original form of R.R. 1:2--1(c).

The principal ground of appeal is that as defendant's wife Paulette Briley should not have been allowed to testify against him except with regard to the atrocious assault and battery committed upon her. More particularly, the trial court is said to have erred in failing to exclude her testimony against him on the charge of murdering Reaves. Basically the contention is that such testimony is made incompetent by Rule 23(2) of the New Jersey Rules of Evidence, N.J.S. 2A:84A--17(2), N.J.S.A. The rule provides:

'The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse and the accused shall both consent, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is the complainant.'

Some reference to the facts is necessary to an understanding of the alleged trial error. When this criminal event occurred on November 6, 1966, defendant, age 28, and Paulette, age 18, had been married for three years. Their marriage was stormy; he was suspicious of her fidelity although his own constancy apparently left much to be desired. On Thursday November 3 they quarreled because defendant found his wife and Reaves embracing. She then left their home with her baby and stayed for the next three nights at the Rainbow Motel on Route 22, Green Brook, N.J. The State produced testimony from Mrs. Briley's brother that during the quarrel Briley told Reaves if he ever caught him with Paulette he would kill him.

On Sunday morning, November 6, Reaves came to the motel and picked up Mrs. Briley and the baby. They got into his car and Reaves was about to start it when Briley, who had been looking for his wife, observed them. According to Mrs. Briley he ran toward the car, armed with a shotgun, part of the stock and barrel of which had been sawed off. Briley claimed that as Reaves got out of the car he reached into his back pocket for a knife. In the course of the ensuing struggle the gun was discharged, and Reaves died shortly thereafter from a gunshot wound in the abdomen. At the trial Briley said that he did not have his finger on the trigger when the gun went off and that the firing occurred somehow in the struggle. He maintained also that his pretrial statement that he 'had shot him in the stomach' did not give a true picture of the accidental nature of the shooting. His intention was to 'frighten Reaves, not to shoot him.'

In her testimony, which was objected to in reliance upon Rule 23(2), Mrs. Briley denied seeing a knife in Reaves' hand. She heard the gun go off and saw Reaves fall. Then she saw her husband raise his arm as if he was striking the fallen man. The autopsy showed (in addition to the shotgun wound) that the deceased had lacerations of the scalp and abrasions of the forehead, right eye, nose, kneecaps and hands.

Mrs. Briley put her baby on the seat of the car, got out of the passenger side and started to run down the road. Briley pursued, intending to hit her because she had gone to the motel with Reaves. She tripped and fell and he overtook her as she lay on the ground. He was still carrying the shotgun which was then empty. Apparently while asking what she was doing at the motel 'with that man,' he struck at her with the gun, causing the injuries which resulted in the indictment for atrocious assault and battery.

During the trial when defendant's wife was produced as a witness for the State, the pretrial motion to sever the homicide and atrocious assault and battery counts was renewed and again denied. Since the two alleged crimes arose out of a single event or transaction, joinder in separate counts of a single indictment was proper. R.R. 3:4--7; 3:5--6. Determination of the claim of alleged prejudicial joinder involved an exercise of discretion by the court. R.R. 3:5--7. Obviously the refusal to sever the counts did not constitute an abuse of discretion. See State v. Coleman, 46 N.J. 16, 24, 214 A.2d 393 (1965), Certiorari denied 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966). Defendant then moved to limit his wife's testimony to the charge of atrocious assault and battery upon her and to exclude it with respect to the murder. This too was denied. Her statements as to the entire event were admitted without qualification in support of both charges against defendant. Moreover, in charging the jury the trial judge imposed no limitation on the jury's use of her testimony in reaching a decision on defendant's guilt. Defendant made no objection to the charge.

At the close of the case defendant moved for a judgment of acquittal as to the atrocious assault and battery on the ground that the proof showed no more than assault and battery. The court denied the motion, holding that a factual issue for jury determination was presented. On this appeal from the ruling, we have examined the entire record, and although the evidence to show that the offense against Mrs. Briley was atrocious assault and battery rather than assault and battery is not too substantial, the circumstances of the event, the nature of the attack and the injuries inflicted upon her lead to the conclusion that the trial court was justified in submitting the issue for jury determination. Defendant's argument on this point has a double thrust. If the attack upon his wife was an assault and battery, that infraction, being a disorderly-person offense, was cognizable only in the municipal court. Therefore he urges it could not have been joined properly as a separate count in the murder indictment because the county court had no jurisdiction. 1 Since the county court lacked jurisdiction of the assault and battery it follows, his argument continues, that it was clear error to allow the State to use her as a witness against him in the murder prosecution. We reject the contention because in our view under the circumstances of the case Mrs. Briley would have been a competent and compellable witness in the murder case whether a charge of assault and battery upon her was instituted in the municipal court or the count for atrocious assault and battery had been severed and the murder charge tried separately.

This brings us directly to defendant's contention that his wife should not have been allowed to testify against him on the indictment for murdering Reaves. He says that since she was not the victim of that separate and distinct crime, Rule 23(2), Supra, barred her testimony on that subject unless he consented that she testify.

The early common law excluded husbands and wives from testifying against each other in any criminal proceeding in which the other was a defendant. A number of reasons were assigned in support of the rule. The husband and wife were considered one, and preservation of that concept was thought to be of paramount societal importance. The courts were interested in protecting the sanctity and tranquility of the marriage relationship. They were opposed to anything tending to promote domestic strife. Munyon v. State, 62 N.J.L. 1, 42 A. 577 (Sup.Ct.1898). But an exception to the rule was soon recognized. Whenever any criminal act of violence was committed upon either spouse by the other, the injured spouse was permitted to testify against the offender. State v. Marriner, 93 N.J.L. 273, 108 A. 306 (Sup.Ct.1919). The qualification came into existence in part as a matter of necessity because assaults upon one spouse by the other were usually committed in the privacy of their home and with no witnesses present. The courts looked upon the modification as protecting the injured spouse as an individual And as a member of the public. A husband who assaults his wife commits an injury upon her and upon the society of which they are members. It is for the injury to the public, committed upon it through the person of his wife, that he is punished and others are deterred from doing likewise. And it is therefore, for the protection of society, and of the wife as a member of society, that she is made competent as a witness against him. He being an offender against the public and not the wife alone, she is made competent to testify as a witness for the public. And that competency cannot be disclaimed by her. See Turner v. State, 60 Miss. 351, 45 Am.Rep. 412 (1882); State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548, 550--551 (1964); Wyatt v. United States, 362 U.S. 525, 80 S.Ct. 901, 4 L.Ed.2d 931 (1960); State v. Kollenborn, 304 S.W.2d 855, 860--861 (Mo.Sup.Ct.1957); Commonwealth v. Allen, 191 Ky. 624, 231 S.W. 41, 42--43, 16 A.L.R. 484 (Ct.App.1921).

The common law privilege has been made statutory in variant forms in most states. 2 Wigmore, Evidence § 488 (3d ed. 1940); 8...

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