State v. Giberson

• Decision Date: 19 November 1923
• Docket Number: No. 1a.,1a.
• Citation: 122 A. 724
• Parties: STATE v. GIBERSON.
• Court: New Jersey Supreme Court

122 A. 724

STATE

v. GIBERSON.

No. 1a.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

The provisions of the federal Constitution against unreasonable searches and seizures are limitations upon federal, and not upon state, powers. The provision of the New Jersey Constitution against unreasonable searches and seizures is not violated when the search was made by the consent of the defendant.

One who aids, abets, counsels, or procures another to commit murder, provided he was near enough to render assistance, is a principal, not an accessory.

In considering an assignment of error directed to a portion of a judge's charge severed from its context and from the whole charge, a court of review will read the context and the whole charge, and if, upon considering it in its entirety, no error appears, the defendant can take nothing by the exception.

(Additional Syllabus by Editorial Staff.)

Error to Court of Oyer and Terminer, Ocean County.

Iva Giberson was convicted of murder in the first degree, and she brings error. Affirmed.

See, also, 119 Atl. 284.

William H. Jeffrey, of Toms River, and James Mercer Davis, of Camden, for plaintiff in error.

Wilfred H. Jayne, Jr., Prosecutor of the Pleas, of Lakewood, and Maja Leon Berry, of Toms River, for the State.

WALKER, Ch. The defendant, Iva Giberson, was convicted in the Ocean oyer and terminer of murder in the first degree, with recommendation to life imprisonment, which was imposed. She has sued out a writ of error to this court, and returned the record of the proceedings had upon the trial, meaning, doubtless, the entire record of the proceedings, etc., under section 136 of the Criminal Procedure Act (Comp. Stat. p. 1863), and we have so treated the case.

During her incarceration and before the trial, Mrs. Giberson filed a petition in the oyer, setting forth that on the day of the murder, August 14th, Prosecutor Jayne, in company with Ellis Parker, a detective, and Officers Mason and Kelly, called at her home, and on that day and other days, without lawful authority or search warrant, searched the premises and apartment of petitioner, and removed therefrom certain effects of hers, among which were letters, receipts, bank book, loan book, Insurance policy, cash, keys, the napkin which was around the petitioner's neck, and cords or strings which were around her wrists and ankles, at the time Peterson and other men from the railroad came, in response to her cries, to the premises on which the murder was committed, and she prayed an order directing the prosecutor and officers to forthwith return those effects alleged to have been unlawfully taken, etc. Mr. Justice Kalisch in the oyer, in deciding this application, said that the burden of proof was upon Mrs. Giberson; that she called the witness Mason, who said that he had her consent to make the search not only once but several times; that Mrs. Giberson herself said that she did not object to the search of the premises, and, further, volunteered herself to tell where certain things were; and he felt bound by the common law and the decision of this court in the case of State v. Mausert, 88 N. J. Law, 286, 95 Atl. 991, L. R. A. 1916C, 1014, that he had come to the conclusion that the search and seizure were made with the consent of the defendant, the accused; that it was a question of fact, so presented by the testimony, and stood as a question of fact on the evidence taken under the rule to show cause granted on the petition; that, although there was no search warrant issued, nevertheless the accused gave her full consent to the search; and that the papers were taken under these circumstances; the motion was refused and an exception allowed. The question arose again on the admission of evidence on the trial, and there was objection and exception.

The contention on behalf of the defendant is that all of the personal property mentioned in the petition should have been returned to her, because taken from her by unreasonable search and seizure in violation of the Constitution of the United States and of this state. The answer is that the provisions of the Constitution of the United States in this regard are limitations upon federal, but not upon state, powers. Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80; Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; and other cases. And our Constitution, article I, § 6, secures persons and property against unreasonable searches and seizures. But this was in nowise violated in this case, because, as matter of fact, the defendant consented, not only by not protesting, but actually consented in words to the search which resulted in the seizure of the articles, some of which, by the way, were returned, while others were offered in evidence. The defendant can take nothing by this objection. Other assignments of error and causes for reversal argued will now be considered.

The fifth assignment of error is that the trial court erroneously admitted in evidence certain altered bank statements. They concerned the account of the deceased in the People's National Bank of Lakewood, and the argument is that they were not identified as ever having been issued by the bank, and that their authenticity was therefore not established. The cashier testified that they were issued by the bank with reference to the account of Mr. Giberson, and that Mrs. Giberson, the defendant, did the banking business for her husband during the last two years. These bank statements were among papers found in the search. They were clearly admissible.

The eighth assignment is directed to the admission of testimony by Martha Giberson, mother-in-law of the defendant, who said that the defendant remarked about a month before the homicide that there was no justice in Toms River (the county seat of Ocean county); any one could commit murder and get clear. The state contends that this was not excepted to. The defendant says there was objection and a motion to strike out the testimony. After the witness had made the statement, counsel moved to strike it out as being Incompetent, irrelevant, and immaterial. It is apprehended that counsel cannot move to strike out testimony to which no valid objection is made. Treating the motion to strike out as an objection, still it is ineffectual, because it points out no incompetency, irrelevancy, or immateriality. Quite aside from the fact that this objection is invalid, the testimony was competent. If the defendant had murder in her heart, she naturally had it on her mind also; and it was quite natural, too, that she should be prone to make statements, born of her thought, that she could escape the consequences of her contemplated crime. In other words, this statement to her mother-in-law, assuming that she then contemplated the murder of which the jury found her guilty, seems to be a not unnatural utterance of the thought that must have been uppermost in her mind. The jury might well have assumed defendant then contemplated the homicide. There was no error in admitting the testimony.

The seventeenth assignment is that the court erred in permitting the witness Riley to testify that deceased was not in the bootlegging business in Mount Holly. The objection was that it called for an expression of opinion on a question of fact. Assuming this to be so, it also called for a question of fact, and so, for that, if for no other, reason, was admissible. No authority is cited to support this untenable objection.

The eighteenth assignment is that the court erred in not striking out the testimony of Archie Murray relating to the forgery of his signature to a promissory note credited in the bank account of the deceased. The state's contention was that it was a circumstance in the alleged fraud practiced by the defendant upon her husband in the way of fabricating his bank account, and that it was pertinent on the subject of motive generally. There was testimony that Mrs. Giberson transacted her deceased husband's banking business, and there was apparent necessity for discounting the forged note for the purpose of placing money to his credit in the bank, the accused having depleted his account. The judge properly refused to strike out the testimony. There was no error.

As to the thirteenth specification, which attributes error to the charge wherein it was said that the question to be...