State v. Duvel

• Decision Date: 10 August 1926
• Docket Number: No. 16.,16.
• Citation: 134 A. 283
• Parties: STATE v. DUVEL.
• Court: New Jersey Supreme Court

134 A. 283

STATE

v. DUVEL.

No. 16.

Supreme Court of New Jersey.

Aug. 10, 1926.

Error to Court of Quarter Sessions, Essex County.

Helen Duvel, alias Helen Bugal, alias Hattie Hager, was convicted of larceny, and she brings error. Reversed.

Argued January term, 1926, before GUMMERE, C. J., and KALISCH and CAMPBELL, JJ.

Frank B. Colton, of New York City, for plaintiff in error.

John O. Bigelow, of Newark, for the State.

PER CURIAM. The writ of error brings to us for review a judgment of conviction for larceny (shoplifting) entered upon verdict at the Essex quarter sessions.

There are only two questions presented: One is that the trial court erred in admitting an alleged confession of the plaintiff in error. We think this is not so, because there was. testimony warranting the court in admitting it as competent, and such court action will not be disturbed where there is any testimony supporting such ruling. The other ground urged is that after the jury had retired to consider its verdict the trial judge left the courtroom and the courthouse after first having directed the clerk to take the verdict. Subsequently a communication in writing was received by the clerk from the jury, as follows:

"(1) Kindly explain what constitutes larceny.

"(2) Was it necessary for the defendant to have carried the goods off the premises of Mahns & Co. to have committed the offense?"

The clerk communicated with the trial judge by telephone, and was directed by him to answer the inquiry in accordance with answers given to the questions by the judge to the clerk over the telephone—the clerk taking down the answers in writing, and by direction of the judge delivering this writing to the jury.

This, with the further statement that the instructions dictated by the judge were correctly taken down by the clerk and given to the jury, and that such answers were a correct statement of the law, will be found in a memorandum filed by the trial judge upon a subsequent motion for a new trial.

We think that this procedure was so irregular and so likely to be prejudicial to a defendant and so charged with possibilities of harm and abuse as to require a reversal. All the authorities seem to require and insist upon judicial acts of this character being done and performed in open court. State v. Doty, 32 N. J. Law, 403, 90 Am. Dec. 671; Davis v. Township Delaware, 41 N. J. Law, 55; Folkner v. Hopkins (N. J. Sup.) 126 A. 633; State v. Simon (N. J. Sup.) 127 A. 570.

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