State v. O'connor.
| Citation | 134 N.J.L. 536,49 A.2d 45 |
| Decision Date | 27 September 1946 |
| Docket Number | No. 3.,3. |
| Parties | STATE v. O'CONNOR. |
| Court | United States State Supreme Court (New Jersey) |
OPINION TEXT STARTS HERE
Error to Court of Quarter Sessions, Hudson County.
Michael O'Connor was convicted for carrying a concealed weapon without a permit, and he brings error.
Affirmed.
May term, 1946, before CASE, C. J., and HEHER, J.
Albert J. Shea, of Hoboken, for plaintiff in error.
Walter D. Van Riper, Atty. Gen. and Acting Pros. of the Pleas, and Raymond J. Cuddy and William P. Gannon, Deputy Attys.Gen., for the State.
Plaintiff-in-error sued out a writ of error to review a judgment of conviction upon an indictment charging that on September 21, 1945, he ‘did carry’ a loaded revolver ‘concealed on and about his clothes and person * * *, without having first obtained the requisite permit to carry the same,’ in contravention of R.S. 2:176-41, N.J.S.A. This indictment and another alleging that plaintiff-in-error also, on the prior August 31st, while armed with a revolver, perpetrated a robbery upon one John Daddetta were tried together, by consent.
The points raised and argued are (1) that the trial judge erred in his refusal to direct a verdict of not guilty at the close of the State's case; and (2) that the verdict of guilty was against the weight of the evidence.
The motion to direct a verdict of acquittal was addressed to the discretion of the court, and the action thereon is not reviewable on error. State v. Jaggers, 71 N.J.L. 281, 58 A. 1014, 108 Am.St.Rep. 746; State v. Metzger, 82 N.J.L. 749, 82 A. 330; State v. Cohen, 97 N.J.L. 5, 116 A. 724; State v. Pius, 118 N.J.L. 212, 192 A. 89. Such action is reviewable, however, where the entire record of the proceedings had upon the trial has been returned by the plaintiff-in-error with the writ of error and the bill of exceptions, under R.S. 2:195-16, N.J.S.A., and the ruling has been specified as a cause for reversal in accordance with R.S. 2:195-18, N.J.S.A. Here, the entire record of the proceedings upon the trial, certified by the trial judge, was returned with the writ of error, but there was no specification of causes for reversal. The ruling thus complained of was made the subject of an assignment of error merely, and it is therefore not reviewable under sec. 2:195-16, supra. State v. Lyons, 70 N.J.L. 635, 58 A. 398; State v. Miller, 71 N.J.L. 527, 60 A. 202; State v. Kind, 80 N.J.L. 176, 75 A. 438; State v. Merkle, 83 N.J.L. 677, 85 A. 330; State v. Ramage, 91 N.J.L. 435, 103 A. 1043. With the exception presently to be mentioned, the plaintiff-in-error is confined to the errors assigned upon the bill of exceptions.
The point that the verdict was contrary to the weight of the evidence has been raised by an assignment of error; and, by force of R.S. 2:195-19, N.J.S.A., the plaintiff-in-error in a criminal case may ‘assign as error that the verdict was against the weight of the evidence, whether or not any exception has been taken or motion to acquit has been made,’ where the entire record of the trial proceedings has been returned with the bill of exceptions, and in such event the appellate court is enjoined to award a new trial ‘if it shall appear from a consideration of the entire evidence that the verdict was against the weight of the evidence * * *.’
To warrant a conviction in a criminal case the jurors must be satisfied of the accused's guilt beyond a reasonable doubt; but the inquiry by the reviewing tribunal under sec. 2:195-15, supra, is whether, upon a comparison and consideration of all the evidence, it clearly appears that the verdict is the product of mistake, passion, prejudice or partiality. It is not necessary that the minds of the reviewing judges also be satisfied of guilt beyond a reasonable doubt. State v. Hauptmann 115 N.J.L. 412, 443, 180 A. 809; State v. Karpowitz, 98 N.J.L. 546, 120 A. 40; State v. Woodworth, 121 N.J.L. 78, 1 A.2d 254.
We find that the verdict is grounded in circumstances reasonably and naturally tending to establish the accused's guilt of the crime charged; and thus the conclusion of the jury is not assailable as contrary to the weight of the evidence.
The accused was taken into custody by a lieutenant of the Hoboken police department on a street in Hoboken near a steamship...
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