State v. Garton
| Decision Date | 17 May 1926 |
| Docket Number | No. 71.,71. |
| Citation | 133 A. 403 |
| Parties | STATE v. GARTON. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Supreme Court.
Luther Garton was convicted of the illegal possession and the illegal sale of liquor (129 A. 480), and he brings error. Reversed and remanded.
Rex A. Donnelly, of Bridgeton, for plaintiff in error.
Thomas G. Tuso, of Vineland, Prosecutor of the Pleas, for the State.
TRENCHARD, J. Luther Garton was in dieted by the grand jury of Cumberland county. The indictment in the first count charged him with the unlawful possession of liquor for beverage purposes, and in the second count with the unlawful sale of liquor for beverage purposes. He was found guilty on both counts, and the return discloses that the judgment of the court of quarter sessions was "that the defendant be confined in the county jail for the term of six months and pay a fine of $100." That judgment was affirmed by the Supreme Court (129 A. 480), and this writ of error brings up for review the latter judgment.
It is argued here, as it was in the Supreme Court, that the offenses proved were not within the time alleged in the indictment. But that argument is ill founded in point of fact, as is also the contention that the verdict is against the weight of the evidence.
It is next contended that there was illegal evidence elicited during the cross-examination of the defendant. But such cross-examination was conducted without objection, and no motion was made to strike out the evidence. In such case there can be no reversal even under review by way of section 136, of the Criminal Procedure Act (C. S. p. 1863), because no judicial action is involved. State v. Warady, 77 N. J. Law, 348, 72 A. 37; affirmed 78 N. J. Law, 687, 75 A. 977; State v. Sweet, 81 N. J. Law, 250, 79 A. 1054; State v. Dragone, 99 N. J. Law, 144, 122 A. 878; State v. Mohr (N. J. Sup.) 127 A. 348, affirmed (N. J. Err. & App.) 127 A. 349.
The next point specified for reversal is that the trial judge erred in striking out testimony on motion of the state.
It appears that the defendant at the trial made no objection and took no exception to such action of the trial judge. But the action in striking out the evidence was" a ruling by the trial judge "in the admission or rejection of testimony," which is reviewable under section 136 of the Criminal Procedure Act without exception or objection to such ruling. If such ruling was erroneous, and if thereby the defendant suffered manifest wrong or injury, it would lead to a reversal. Criminal Procedure Act, § 136; State v. Mosley (N. J. Err. & App.) 131 A. 292.
Considering now the question presented, we think that the judge did not err. The testimony stricken out was given by one Katz, a witness called by the state, on cross-examination, to the effect that on an occasion (time not fixed) he paid one Swift "a dollar for a pint and two dollars for a quart" of liquor. Of course, it is not contended, cither by the state or the defendant, that Swift was the agent of the defendant, nor that the defendant was bound in any way by his conduct. The contention of the defendant is that the testimony was competent as affecting the credibility of Swift, who was a witness, and had previously testified to a sale by the defendant to Katz and paid for by Katz. This contention is based upon the assumption that Swift had testified to or respecting the same sale that Katz spoke of in the answer that was stricken out. But that assumption is not well founded in fact. The only sale mentioned by Swift as paid for by Katz was a sale of two quarts for $4, and there is no apparent identity or connection between the sale described by Swift and the one mentioned by Katz; the sales being different in quantity and for a different price.
We have examined with care all the other points made by the plaintiff in error, but find no trial errors which in our judgment: could have prejudiced the defendant in maintaining his defense upon the merits. But there is error in this record in the sentence that was imposed by the court of quarter sessions, which was "that the defendant be confined in...
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State v. Laws
...the imposition of life imprisonment, rather than by reversal and lengthy retrial. See R.R. 1:5--1; R.R. 1:9--1; State v. Garton, 102 N.J.L. 318, 321, 133 A. 403 (E. & A. 1926); State v. Burns, 136 N.J.L. 601, 603, 57 A.2d 1 (E. & A. 1948). Although neither the State's brief nor the defendan......
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State v. Laws
...§ 144, p. 916; R.S. 2:195--23; R.S. 2:195A--13; State v. Burns, 136 N.J.L. 601, 603, 57 A.2d 1 (E. & A. 1948); State v. Garton, 102 N.J.L. 318, 321, 133 A. 403 (E. & A. 1926); State v. Huggins, 84 N.J.L. 254, 261, 87 A. 630 (E. & A. 1913). In State v. Culver, 23 N.J. 495, 129 A.2d 715, cert......
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...a former offense of the same kind is alleged in the indictment and proved. Weeks v. State, 101 N.J.Law, 15, 127 A. 345; State v. Garton, 102 N.J.Law, 318, 133 A. 403. The cited cases unquestionably support the law cited. But does it avail prosecutor? Our answer is no. We base that answer on......