State v. D'orio, 5.

• Decision Date: 02 August 1946
• Docket Number: No. 5.,5.
• Citation: 134 N.J.L. 378,48 A.2d 276
• Parties: STATE v. D'ORIO et al.
• Court: New Jersey Supreme Court

134 N.J.L. 378

48 A.2d 276

STATE

v.D'ORIO et al.

No. 5.

Supreme Court of New Jersey.

Aug. 2, 1946.

Error to Court of Quarter Sessions, Essex County.

Joseph D'Orio and Alphonse Carbone were convicted of assault and robbery, and they bring error.

Judgments reversed.

May term, 1946, before CASE, C. J., and HEHER and COLIE, JJ.

Duane E. Minard, Jr., Prosecutor of the Pleas, and C. William Caruso, Asst. Prosecutor, both Newark, for the State.

Anthony A. Calandra, of Newark, for plaintiff in error D'Orio.

George R. Sommer, of Newark, for plaintiff in error Carbone.

COLIE, Justice.

Plaintiffs in error were convicted on an indictment charging them with an assault and robbery and sentenced to the state prison for a minimum of ten years and a maximum of fifteen years at hard labor. Of the assignments of error and specifications of causes for reversal, all were abandoned in this court with two exceptions. Both go to the refusal of the trial court to charge the jury in accordance with written requests to charge properly presented. The precise language of the requests follows: ‘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.’ and ‘It is the duty of the state to prove the guilt of the defendants beyond a reasonable doubt, and this burden never shifts. It is not the duty of the accused to prove his innocence of the charges made against him.’

During the charge to the jury the court said: ‘Now, gentlemen, these defendants come before you because there has been found against them an indictment. An indictment is a charge. It is a charge preferred by the Grand Inquest of the county, the Grand Jury of the county, as it is usually called. When a charge is preferred by the Grand Jury of the county, it becomes the duty of the prosecutor of the pleas to present to a trial court, such as we have here, such evidence as he may have in support of the charge which has been laid by the Grand Jury. It is his duty to present such evidence as he may have and to present his viewpoint and arguments in favor of the State. It then becomes the duty of counsel for the defendants to present such evidence as they may have to the trial court and such arguments as they may choose to adduce in favor of the contentions that they may choose to advance in defense of their clients. And so the jury, having before them the...