State v. Emery

• Decision Date: 16 June 1958
• Docket Number: No. A--125,A--125
• Citation: State v. Emery, 27 N.J. 348, 142 A.2d 874 (N.J. 1958)
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Edward EMERY, Defendant-Appellant (two cases).
• Court: New Jersey Supreme Court

Page 348

27 N.J. 348

142 A.2d 874

STATE of New Jersey, Plaintiff-Respondent, v.Edward EMERY, Defendant-Appellant(two cases).

No. A--125.

Supreme Court of New Jersey.

Argued May 5, 1958.

Decided June 16, 1958.

Louis Winer, Morristown, argued the cause for appellant(Benjamin Yanowsky, Boonton, attorney).

Bertram Polow, Morristown, argued the cause for the State(Frank C. Scerbo, Morris County Prosecutor, Morristown, attorney; Stephen B. Wiley, Morristown, on the brief).

The opinion of the court was delivered by

WACHENFELD, J.

The Appellate Division affirmed two judgments of conviction entered against defendant in the Morris County Court, and we granted his petition for certification.Both convictions arise out of the circumstances attending an automobile accident in which defendant was involved.The judgments are admittedly based on mutually inconsistent findings of fact.

On the evening of March 3, 1956Edward Emery attended a party in the company of his brother, John, and a friend, Eugene Wolf.Shortly before 11:00 P.M. the three boys left the party to, according to Edward's testimony, drive to a diner for some coffee.

At approximately 11:05 P.M. the automobile in which they were traveling struck two pedestrians who were walking along Mountain Lakes Boulevard in the Borough of Mountain Lakes.One of the pedestrians was killed.All of the occupants of the car stated to the investigating police that Edward Emery had been driving when the accident occurred.

On March 17, 1956 Edward, John and Eugene retracted their original stories and informed a state motor vehicle inspector that, in fact, John Emery had been the driver of the vehicle at the time of the accident.Thenceforth, they steadfastly adhered to this version.Nevertheless, Edward was charged with violating the Motor Vehicle Act, R.S. 39:4--50, N.J.S.A., by driving, on the occasion in question, while under the influence of intoxicating liquor, and he was convicted of this infraction in the Mountain Lakes Municipal Court on May 9, 1956.He immediately filed a notice of appeal to the County Court.

Before Edward's appeal was heard, the Morris County grand jury, on October 11, 1956, returned an indictment charging, in the first count, him, John and Eugene with conspiring to obstruct justice by falsely stating that Edward had been the driver of the automobile and, in the second count, charging the same three with the formulation of a conspiracy to obstruct justice by falsely stating John had been the driver.An indictment was also handed down against Edward for causing death by careless driving.

On October 19, 1956, after trial De novo on the record, the Morris County Court confirmed Edward's conviction in the municipal court of driving while under the influence of intoxicating liquor, and Edward subsequently appealed to the Appellate Division.

Eugene Wolf and Edward were brought to trial on the conspiracy indictment on December 3, 1956.John was not tried since he was under the age of 18 years.On December 5, 1956 a jury, sitting in the Morris County Court, found Edward and Eugene guilty of conspiring to obstruct justice by falsely stating that Edward had been driving the automobile when the accident took place.Edward and Eugene were acquitted on the second count of the indictment.Thus, at this point in the various proceedings, the County Court had convicted Edward of driving while under the influence and the jury had convicted him for agreeing to state untruthfully that he was the driver of the car--two wholly inconsistent factual determinations.

Edward did not appeal from the conspiracy conviction until the prosecutor brought its existence to the attention of the Appellate Division on the appeal of the drunken driving conviction.The Appellate Division then suggested the former judgment be brought up for simultaneous review with the latter, and this was done.Although invited to do so by the lower appellate tribunal, defendant declined to argue that the second conviction was invalid on the grounds of Res adjudicata or collateral estoppel.The Appellate Division did not discern any merit in the contentions actually advanced by defendant and, accordingly, it affirmed both convictions, saying:

'We have carefully examined the points of appeal urged in the brief and argument on the appeal from the conviction on the conspiracy indictment, and, for reasons which we shall set forth, find no merit in any of them.The one substantial basis for an argument for reversal, that the verdict upon which judgment of conviction was entered was barred on principles of Res judicata arising from the contrary determination of fact implicit in the statutory conviction, is beyond our purview, because the defendant deliberately declined to make the point, although specifically invited by the court to do so at and prior to the oral argument.In the interests of avoiding an injustice the court was willing to overlook the fact that the plea was not made at the trial, seeState v. Meyers, 9 N.J.Misc. 1174(157 A. 96)(Sup.Ct.1931), affirmed110 N.J.L. 527(166 A. 75)(E. & A.1933).We cannot, however, base a determination of an appeal on a ground which is not only properly objected to by the State because not urged at the trial but is expressly disclaimed by the appellant.These observations in no way imply any settled opinion on the merits of the matter of Res judicata. * * *'

Defendant urges various reasons why the 'drunken driving' conviction should be set aside as illegal, and we will consider them in the order in which they are advanced.

The First Conviction

It is initially asserted the State failed to produce sufficient evidence to prove the essential elements of a violation of R.S. 39:4--50, N.J.S.A.

A prosecution for driving while under the influence of intoxicating liquor falls into the somewhat amorphous category of a quasi-criminal proceeding.State v. McCarthy, 30 N.J.Super. 6, 103 A.2d 169(App.Div.1954);State v. Rowe, 116 N.J.L. 48, 181 A. 706(Sup.Ct.1935), affirmed p.c. 122 N.J.L. 466, 5 A.2d 697(E. & A.1939).An infraction of the statute must be proved beyond a reasonable doubt.State v. Batz, 34 N.J.Super. 172, 111 A.2d 789(App.Div.), certification denied18 N.J. 279, 113 A.2d 707(1955);State v. Matchok, 14 N.J.Super. 359, 82 A.2d 444(App.Div.1951).

It is not our function in reviewing the conviction in question to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case.Rather, our obligation is to determine whether there is adequate evidence to support the judgment rendered below.State v. Dantonio, 18 N.J. 570, 115 A.2d 35, 49 A.L.R.2d 460(1955);State v. Myers, 136 N.J.L. 288, 55 A.2d 661(Sup.Ct.1947);State v. Rowe, supra.

Defendant maintains that the State failed to prove beyond a reasonable doubt that he was the driver of the automobile involved.It is significant, however, that this contention is not actually predicated upon any alleged deficiencies in the State's case but, instead, upon the fact that at the trial Edward, John and Eugene all testified on behalf of the defense that John had been driving.They stated that, pursuant to an agreement made during the few hectic moments following the accident, they had originally lied in order to protect John, who did not have a license and had previously been in difficulty with the authorities for driving without one.

There was, however, ample evidence to support the magistrate's finding, subsequently confirmed by the County Court, that Edward was the driver and not John.

The police officers who had gone to the scene of the accident related Edward's admissions to them that he had been driving, and the State introduced Edward's signed statement to the same effect.The prior inconsistent statements of John and Eugene that Edward was the driver were also the subject of testimony.Additionally, two of the officers described Edward's reactions when he received the news at police headquarters that one of the pedestrians had died.They stated Edward jumped from his chair, exclaiming, 'Oh, my God, I killed a man,' and, when they tried to calm him, 'You can tell me to take it easy, I killed a man.'He said further: 'It's bad enough I don't have the money to pay for the drunken driving.If I go to jail my wife will have to go on relief and who is going to take care of my baby.'

In light of their prior statements and demeanor, the magistrate was certainly not compelled to accept the story given by Edward, John and Eugene at the trial as true.It is as plausible to suppose the trial testimony was fabricated in order to protect Edward as it is to conclude the earlier statements were contrived to shelter John.Edward was an adult with a family to support and an indictment for causing death by reckless driving pending against him, while John had no such responsibilities and could only be proceeded against as a juvenile delinquent.Especially influential as bearing upon the true identity of the driver of the car are Edward's agitated remarks in response to the information that a man had been killed.

Defendant asserts, however, that there is other evidence, aside from the testimony of the three boys, which conclusively vindicates his contention that John was the driver rather than himself.

According to their testimony at the trial, all three occupants of the automobile were sitting in the front seat when the accident occurred.Wolf, who was farthest away from the driver, pitched forward and shattered the windshield with his arms.He was cut rather badly and required hospitalization.The right side of Edward Emery's face was also lacerated.John did not sustain any injuries.

If the unimpeachable evidence of the physical results of the accident entirely refuted the State's contention that Edward was the driver, we should, of course, be obligated to order a reversal.But does the injury to Edward's right cheek, regarded in the...