State v. D'Adame

• Citation: 84 N.J.L. 386,86 A. 414
• Parties: STATE v. D'ADAME.
• Decision Date: 03 March 1913
• Court: United States State Supreme Court (New Jersey)

86 A. 414

84 N.J.L. 386

STATE

v. D'ADAME.

Court of Errors and Appeals of New Jersey.

March 3, 1913.

(Syllabus by the Court.)

Error to Supreme Court.

John D'Adame was convicted of receiving stolen goods, and he brings error. Affirmed.

For opinion in Supreme Court, see 82 N. J. Law, 315, 82 Atl. 520.

Coult & Smith, of Newark, for plaintiff in error.

Wilbur A. Mott, Prosecutor of the Pleas, of Newark, for the State.

WHITE, J. This is a writ of error to a judgment of the Supreme Court affirming a judgment of the court of quarter sessions of Essex county convicting the defendant, D'Adame, of the crime of receiving stolen goods, knowing them to have been stolen. The goods in question consisted of copper wire, which two boys, Knight and Mahon, had cut from the telegraph poles of the Lehigh Valley Railroad Company. Upon information received from a third boy, a warrant was sworn out for Knight and Mahon, and two days after the theft Officers Miller and Autobato arrested them. They admitted the theft at once, and upon the trial of D'Adame testified that they had sold the wire to him at his house on Miller street, Newark. While on the stand, Mahon pointed out and identified D'Adame as the man who bought the wire from them; but Knight, when asked to do so, pointed out another man, and said he was one of the men that was there, but that he did not see the other in the courtroom. The man who was pointed out by Knight as one of the men was not D'Adame, and, in fact, took the stand and swore he had never been at the Miller street house. The officers who arrested the boys, Knight and Mahon, two days after the crime in question were then called, and both testified that they took Knight, immediately after arresting him, and when he admitted stealing the wire, to D'Adame's house, and that in the presence of D'Adame Knight had pointed out D'Adame and said he was the man who bought the wire, and that thereupon D'Adame had denied it and said "it wasn't him." It is in reference to this testimony of the officers that the errors principally insisted upon are assigned.

The exceptions were allowed as follows: Officer Miller having reached the point where he had taken the boy, Knight, to defendant's house, testified: "Q. State what the boy said and what the defendant said. A. Autobato asked the boy in English, 'Is this the man you sold the wire to?' and he said, 'Yes.' Q. Was this in the presence of defendant? A. Yes, sir. Mr. Coult (defendant's counsel): I move to strike out the answer to this question, on the ground that it is hearsay, and, secondly, on the ground that it is an impeachment of the state's witness. Q. What did D'Adame say, if anything, to that? A. D'Adame said 'it wasn't him.' The boy said, 'Yes; I have been here before.' By the Court: The motion to strike out is denied. (Exception prayed by defendant allowed and sealed.)"

Officer Autobato, having reached a similar point, namely, where they had brought the boy, Knight, into defendant's house and into his presence, testified: "Q. What was said? A I just said to the boy, 'Is that the man you sold the stuff to?' Mr. Coult: I object to the question, 'What was said?' (Objection overruled and exception sealed.) A. I brought the boy in the house, that we arrested, and I asked him—in the house there was two men sitting there and two women— I asked him if that was the house he had sold the stuff in. When he got inside, he said, 'Yes.' I said, 'Is the party in here that you sold the stuff to?' He said, 'Yes.' I said, 'Point him out to me.' Q. Who did he point out? A. The man by the name of D'Adame. Q. Where is he? A. This is D'Adame here (indicating defendant). Q. And then did you arrest him? A. Yes, sir. * * * Mr. Coult: At this point I wish to move to strike out that portion of this witness' testimony which relates to the identification of the defendant by the boy, Knight. * * * The testimony is clearly hearsay. Q. By the Court: What you said the boy said about this man as being the person to whom the property was sold was said in the presence of the defendant? A. In the room there; yes, sir. Q. Was the defendant there? A. Yes, sir. Q. Did the defendant say anything? A. He said he didn't buy it. By the Court: The motion is to strike out? Mr. Coult: Yes, sir. The Court: Motion denied. (Exception prayed for defendant allowed and sealed.)"

The Supreme Court (State v. D'Adame, 82 N. J. Law, 315, 82 Atl. 520), quoting the testimony of Officer Miller, where no objection was made to the question, but only a motion made to strike out the answer, treated the matter from the standpoint of an attempt on the part of the defendant at "speculation" by permitting the question without objection, and then, finding the result unfavorable, moving to strike out the answer. Exception is taken to this view, however, because it is said that the question itself was a proper one, and so not subject to proper objection.

The rules with regard to a motion to strike out testimony may be summarized as follows: Where an answer, or a part of an answer, is irresponsive to a competent question, the examiner may move to strike out what is irresponsive, whether it be competent evidence or not; but if competent the adverse party has no such right. If an answer be relevant for any purpose, it may stand as against a motion to strike out. If the question be incompetent, the adverse party cannot "speculate" by waiting to see if the answer is favorable to him, and, if not, moving to strike it out. He must object to the incompetent question. If, however, the question be competent and the answer incompetent, the adverse party may move to strike out the answer; and he does not lose this right by not objecting to the competent question.

The true rule under the latter circumstance was correctly stated by Chief Justice Elliott in Jones v. State, 118 Ind. 39, 20 N. E. 634, as follows: "The question was, in form and substance, a proper one, and, of course, could not have been successfully assailed, so that an objection would have been unavailing. The appellant therefore did not lose the right to move to reject the answer by failing to object to the question. Where the question is a competent one, and the answer is incompetent, the correct practice is to move to strike out the answer."

It appears also that under similar conditions in Officer Autobato's testimony the question was, in fact, objected to, and when allowed an exception was prayed and granted, and that then, upon the answer disclosing (as it likewise did in Officer Miller's testimony) the absence of an "admission" on the part of the defendant, a motion was made to strike out the answer and an exception taken to the refusal of this motion.

It would seem, therefore, that the action of the trial court in refusing appellant's motions to strike out the portion in question of the testimony of Officers Miller and Autobato, on the ground, first, that it was "hearsay," and, second, that it impeached the state's own witness, Knight, is fairly before us for review, unprejudiced by appellant's failure to object to the question asked Officer Miller.

Taking up the "hearsay" objection, it is urged on behalf of the state that evidence of the statements in question was admissible, because they were made in the presence of the defendant and injuriously affected his rights. It is claimed that this fact alone is a sufficient criterion, and in support of this contention a quotation is made from the syllabus in Donnelly v. State, 26 N. J. Law, 601, as follows: "When a matter is stated in the presence of a person which injuriously affects his rights, and he understands it, the statement and his reply or silence are both admissible."

This is true where there are any circumstances from which a jury might properly find an express or implied assent to the truth of such statement from such reply or silence. But where, as here, there was neither silence nor any circumstances connected with the substance or the manner of the reply from which such assent of the accused could be inferred, the fact that the "matter was stated in the presence of the accused and injuriously affects his rights" is not, in itself, sufficient to render the statement evidential against him.

The case of Donnelly v. State, supra, was a case in which no reply whatever was made by the accused to the damaging statements, and what this court really said in that case was: "The answer to the question would derive its value from its disclosing a direct or an implied admission by Donnelly [the accused] of the truth of the account which Moses then gave of the occurrence, and of the occasion which caused it, and not from the fact of the statement being a dying declaration of Moses. When a matter is stated in the hearing of one, which injuriously affects his rights, and he understands it and assents to it, wholly or in part, by a reply, both are admissible in evidence; the answer because it is the act of the party, who is presumed to have acted under the force of truth, and the statement as giving point and meaning to the action. So, also, silence, unless it be accounted for by some of the circumstances which have been specified [see the clause next hereinafter quoted], or other sufficient reasons, may be taken as a tacit admission of the facts stated, because the person, knowing the truth or falsity of a statement affecting his rights made by another in his presence, under circumstances calling for a reply, will naturally deny it, if he be at liberty to do so, if he does not intend to admit it." And in another place: "If it appeared that it [the statement] was made in the course of a judicial inquiry, or when circumstances existed which rendered a reply inexpedient or improper, or that fear, doubts of his rights, or the belief that his security would be better promoted by silence than by response, governed him at the time, then the testimony should not have been admitted, for the reason that the jury, in such...