State v. Fine

• Decision Date: 31 January 1933
• Docket Number: No. 225.,225.
• Citation: 164 A. 433
• Parties: STATE v. FINE.
• Court: New Jersey Supreme Court

164 A. 433

STATE

v. FINE.

No. 225.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1933.

Syllabus by the Court.

1. The fact that, in a murder case, certain photographs, admitted in evidence, showing the mutilated and partly decomposed body of a murdered woman, were, in the language of counsel, "gruesome," did not render the admission of them illegal.

2. Instructions to the jury considered, and held not to inhibit their consideration of evidence of insanity before and after the crime as bearing on the question of insanity at the time of committing the crime.

3. Omission to charge that apparent absence of motive may be taken into consideration as corroborative of evidence pointing to insanity held not error, in the absence of any request so to charge.

4. Verdict of guilty held not against the weight of evidence.

Error to Court of Oyer and Terminer, Atlantic County.

Louis Fine was conyicted of murder in the first degree, and he brings error.

Affirmed.

Samuel Morris, of Atlantic City, for plaintiff in error.

Louis A. Repetto, of Atlantic City, Prosecutor of the Pleas, for the State.

PARKER, J.

The plaintiff in error was convicted of murder in the first degree. The deceased was a Mrs. Schaaf, in whose house the defendant below had roomed for several months before her death. The defense was insanity. The proof that defendant had done the killing was not seriously controverted, and the defendant was not sworn in his own behalf. It becomes unnecessary therefore to go into any detail touching the proof bearing on the commission of the act, except as incidental to the points of law argued. They may be grouped under three heads: (1) Admission of certain photographs in evidence. (2) Attacks on the judge's charge. (3) Weight of evidence on the issue of insanity.

The evidence showed that the body of the woman was found in a small trunk which was inside of a big trunk, which had been shipped by express from Atlantic City to Philadelphia. The body was absolutely identified, and it was undenied that death had been caused by strangulation; the rope used being around the neck of the victim. A series of photographs showing the trunks and the body were put in evidence over objection, and the introduction of these pictures is attacked in several specifications.

An examination of the stenographic transcript, however, shows that the objections to them are not well founded. When the first was offered, counsel said: "I object. I cannot see the purpose. The testimony is that there was a white woman in there, and they have testimony, I suppose, to identify her. This is simply a gruesome picture that will answer no purpose."

The fact that counsel could not see the purpose naturally does not make the photograph incompetent. We think it was both relevant and competent, as a question of identification and part of the evidence to establish the corpus delicti. It is true that there was other testimony as to whose body it was and how death had been caused, but the fact that this evidence was cumulative does not render it incompetent, nor does the fact that it happens to be gruesome and injects an element of horror into the case. State v. Aeschbach, 107 N. J. Law, 433, 435, 153 A. 505. It is now argued that the photographs were incompetent because "not the best evidence," and from the case of Goldsboro v. Central R. R. Co., 60 N. J. Law, 49, 37 A. 433, 434, a Supreme Court case, counsel quotes the casual observation, that photographs "are never admitted but as secondary evidence." They are not so treated in Wigmore on Evidence, but are classed under what he calls "non-verbal testimony," like maps or diagrams. Section 789 et seq. It is true, of course, that they must be verified by testimony as correctly depicting the originals that they portray, but it is not suggested that such verification was lacking. Furthermore, and finally, the "best evidence" objection was not made at the trial. Several similar photographs were admitted over the "same objection" and the further objection that they were irrelevant and immaterial. We think they were both relevant and material; and that they were properly admitted.

2. We pass to the attacks on the charge, which are based on the seventeenth and eighteenth assignments of error and causes for reversal. Technically these are utterly futile as specifying any particular part of the charge claimed to be erroneous, and but for the fact that this is a capital case and that we deem it proper, though in no wise obligatory on us, to deal with them in favorem vitæ, they would not be considered for a moment. State v. Blaine, 104 N. J. Law, 325, 140 A. 566.

The seventeenth assignment and specification (so we are informed by the brief) are directed to a passage in the charge which reads as follows: "And we are dealing in this case, gentlemen, only with the mental state of this defendant at the time this act was committed by him, if it was committed by him, and what his condition was theretofore or his condition has been since, what it may be hereafter, is a matter in which you are not now presently concerned. The law of this State provides for every exigency. If this man was insane and unable to go to trial, the law provides for his protection in that event. If he be rendered insane subsequent to the commission of a crime, the law provides for that event. And if, even after conviction, a man be adjudged insane, it is neither the policy of the law nor the practice of this State, to condemn insane persons. The duty is placed squarely, by the policy as established by the legislature, upon the court to see that no insane person shall be put to death."

The claim made by counsel is, in...