State v. D'orio
| Decision Date | 10 February 1947 |
| Docket Number | No. 32.,32. |
| Citation | 51 A.2d 97,136 N.J.L. 204 |
| Parties | STATE v. D'ORIO et al. |
| Court | New Jersey Supreme Court |
Error to Supreme Court.
Joseph D'Orio and Alphonse Carbone were convicted of assault and robbery in the County Court of Quarter Sessions, and to review a judgment of the Supreme Court, 134 N.J.L. 378, 48 A.2d 276, reversing the conviction, the State brings error.
Judgment of Supreme Court reversed and judgment of the Court of Quarter Sessions affirmed.
.
1. Although it is proper for the trial judge to charge the jury that an indictment is no evidence of guilt, it is not reversible error to refuse such a charge where presumption of innocence, burden of proof and reasonable doubt are properly charged, unless something can be pointed to in the charge or in the conduct of the trial from which it might be said that the jury could have been misled into thinking that the indictment was evidential.
2. It is not error to refuse a request to charge, even if it be a proper one, when the subject matter thereof has been adequately covered in the charge of the court.
Duane E. Minard, Jr., and C. William Caruso, both of Newark, for plaintiff in error.
Anthony A. Calandra and George R. Sommer, both of Newark, for defendants in error.
This writ of error is prosecuted by the State to review a judgment of the Supreme Court which reversed the conviction of the defendants-in-error in the Essex County Court of Quarter Sessions upon in indictment charging them with assault and battery and robbery.
The case came to the Supreme Court upon strict writ of error, the entire record not being produced, and the assignments of error, two in number, being directed only at alleged error by the trial court in refusing to charge two certain requests to charge submitted by counsel for defendants-in-error. The Supreme Court held that the refusal to charge one of the requests was proper but that the refusal of the other was error prejudicial to the men on trial and that it required a new trial.
The principle point in controversy, and the one upon which the reversal below was had, concerns the propriety of refusing to charge the following request:
‘The members of the jury are instructed that the indictment in this case is not evidence against the accused and is not to be considered as evidence during your deliberations of the evidence in this case.’
The Supreme Court in effect held that, it being elementary that an indictment is not evidence of the facts charged therein, the defendants-in-error were entitled absolutely to have the jury so instructed when properly worded and timely request was made, citing United States v. Schanerman, 3 Cir., 150 F.2d 941.
The precise point here raised seems never to have been presented before in this jurisdiction and there is conflict in the holding of other jurisdictions upon the subject. See 23 C.J.S., Criminal Law, § 1217, page 774. The Supreme Court of Iowa, in the case of State v. Sauerbry, 233 Iowa 1076, 10 N.W.2d 544, 546, adopted the view opposed to that of the court below in this case. It was there said:
The court then went on to point out that some of the authorities holding it to be reversible error to refuse such a request were based in part on the fact that instructions given on the presumption of innocence were either incorrect or inadequate, and continued:
‘We think it is the better view, supported by the weight of authority, that ordinarily it is not reversible error to refuse a requested instruction that the formal charge is no evidence of guilt, where the jury is fully instructed on the presumption of innocence, burden of proof, and reasonable doubt.’
We are of the opinion that it is the proper rule that reversible error does not occur in the refusal of such a charge where presumption of innocence, burden of proof and reasonable doubt are properly charged, unless something can be pointed to in the charge or in the conduct of the trial from which it might be said that the jury could have been misled into thinking that the indictment was evidential.
An examination of the charge of the trial court in the light of that principle reveals that throughout the charge the court emphasized that the only thing that was to affect the jury in the determination of the guilt or innocence of the defendants was the evidence, the testimony, and he...
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...States, 6 Cir., 218 F.2d 14, 18; State v. Sauerbry, 233 Iowa 1076, 10 N.W.2d 544, 546; and cases cited therein; State v. Di Orio, 136 N.J.L. 204, 205, 51 A.2d 97, 98, reversing 134 N.J.L. 378, 48 A.2d 276 which specifically relied upon United States v. Schanerman, supra; Watts v. United Sta......
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