State v. Cohen
| Decision Date | 13 April 1922 |
| Citation | 116 A. 724 |
| Parties | STATE v. COHEN et ux. |
| Court | New Jersey Supreme Court |
Error to Court of Quarter Sessions, Hudson County.
Samuel Cohen and wife were convicted of burning property to defraud insurance companies, and they bring error. Reversed, and remitted for a new trial.
Argued November term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ.
Julius Lichtenstein, of Hoboken, and J. Emil Walscheid, of Town of Union, for plaintiffs in error.
Pierre P. Garven, Prosecutor of The Pleas, of Bayonne, and George T. Vickers, Asst. Prosecutor of the Pleas, of Jersey City, for the State.
The plaintiffs in error were indicted, under section 126 of the Crimes Act (Comp. Stat. p. 1786), for willfully and maliciously setting fire to and burning certain goods and chattels contained in a store, in the town of Union, where they carried on business, with intent to prejudice, injure, and defraud certain insurance companies specifically named in the indictment, and which had underwritten certain policies of insurance upon that property. At the close of the trial the jury returned a verdict finding the defendants "guilty of burning to defraud insurance companies," and judgment was pronounced against them. They thereupon sued out this writ of error, and now contend before us that the judgment of conviction should be reversed for certain reasons, which will hereafter be considered.
It will be observed that the verdict does not find the defendants guilty of burning with intent to defraud the several insurance companies named in the indictment and which had underwritten policies of insurance upon the property which had been destroyed, but "insurance companies" generally. It is, of course, manifest that this verdict is at least informal; but whether it is subject to amendment, so as to make it conform to the specific charge in the indictment, or whether it is unamendable and constitutes harmful error, we are not called upon to consider, for the reason that no assignment of error or specification of cause of reversal is based upon this inperfection in the record. We have deemed it proper, however, to call attention to the situation, for a reason which will hereinafter appear.
The first ground upon which the plaintiffs in error contend that this judgment should be reversed is that the evidence adduced at the trial was insufficient to establish their guilt beyond a reasonable doubt, and that, this being so, it was error on the part of the trial court to refuse to direct a verdict in their favor. It was pointed out by the Court of Errors and Appeals in State v. Jaggers, 71 N. J. Law, 281, 58 Atl. 1014, 108 Am. St. Rep. 746, that when a case comes up on a strict bill of exceptions error cannot be properly assigned on an exception of the refusal of the trial court to direct a verdict of not guilty, for the reason that the motion is addressed to the discretion of the court. The present case, however, comes up under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), and we are required by it to determine whether the plaintiffs in error suffered manifest wrong or injury in the refusal of the motion, notwithstanding that it was directed to the discretion of the court. State v. Contarino, 92 N. J. Law, 381, 105 Atl. 197. But in doing this, as was pointed out in the cited case, the only question is whether, upon the evidence as it stood when the motion was made, there was a case for the jury; and an examination of the proofs returned with the writ satisfies us that there was such a case, and that consequently the action of the trial court in refusing a direction did no manifest wrong or injury to the plaintiffs in error.
The other assignments of error and specifications of causes of reversal are directed at alleged errors in the charge to the jury and in rulings upon evidence. So far as the charge is concerned, our examination thereof leads us to the conclusion that the excerpts therefrom which are attacked by the plaintiffs in error contain no erroneous statement of the law or recital of fact.
The rulings on evidence were legally unobjectionable, with one exception, and that relates to the testimony of John H. Shuster, an insurance adjuster, who was called as a witness for the defense. On his direct examination the witness testified that he had been employed by Samuel Cohen to make an appraisal of the value of the stock in the store which had been injured or destroyed by the fire, and to arrange an adjustment of the losses with the various companies that had issued policies of insurance upon that stock. He further testified that he advised Mr. Cohen with relation to the...
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...See State v. Wade, 99 N.J.Super. at 557; see also State v. Marchand, 31 N.J. 223, 229-230, 156 A.2d 245 (1959); State v. Cohen, 97 N.J.L. 5, 9, 116 A. 724 (Sup.Ct.1922). Under these circumstances, it cannot fairly be said that there was some reasonable nexus between the admitted portions of......
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...incompetent fact does not make such fact competent evidence. Commonwealth v. Campbell, 155 Mass. 537, 30 N. E. 72;State v. Cohen, 97 N. J. Law, 5, 116 A. 724;United States v. Sager (C. C. A.) 49 F.(2d) 725, 729, 730. The evidence, though immaterial, was likely to harm the defendant, and its......
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