State v. Grace

• Decision Date: 07 March 1923
• Parties: STATE v. GRACE.
• Court: New Jersey Supreme Court

119 A. 767

STATE

v. GRACE.

Supreme Court of New Jersey.

March 7, 1923.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Bergen County.

Joseph Grace was convicted of robbery, and he brings error. Affirmed.

Argued November term, 1922, before GUMMERE, C. J., and SWAYZE and TRE'NCHARD, JJ.

Ziegener & Lane, of Jersey City (Harry Lane, of Jersey City, on the brief), for plaintiff in error.

A. C. Hart, Prosecutor of the Pleas, of Hackensack, for the State.

TRENCHARD, J. Grace, the plaintiff in error, was indicted with two others for robbery. The trial judge directed an acquittal of the others, and Grace was convicted by the jury. Grace prosecutes this writ of error, and the case comes up on strict bill of exceptions and also on the entire record pursuant to the statute.

The testimony established that one Lawson, at 11 o'clock in the morning of August 5, 1921, was held up on the public highway and robbed of $12,000, his employer's pay roll. Crann, one of Lawson's fellow employees, who was riding with him in the automobile, and who was a witness at the trial, identified the defendant, Grace, as one of the robbers. Grace was arrested on August 9, 1921, and, at the trial, attempted to prove an alibi.

The defendant (pursuant to chapter 349 of P. L. 1921, p. 951) assigns as error that the verdict is against the weight of the evidence, and his argument is that the weight of the evidence shows that he was elsewhere when the crime was committed. But we do not take that view. The only basis for the argument is that the witnesses for the defendant outnumbered the witnesses for the state upon that topic.

But under that statute the court of review weighs the evidence in the same manner as upon a rule to show cause in a civil case, where the reason assigned is that the verdict is against the weight of the evidence. State v. Morchous (N. J.) 117 Atl. 296; State v. Fischer (N. J. Sup.) 117 Atl. 519, affirmed 118 Atl. 927. The mere fact that the number of the defendant's witnesses exceed those for the state is no ground for setting aside a verdict against the defendant. Bowell v. Public Service Corporation, 77 N. J. Law, 231, 71 Atl. 119; Campbell v. Del. & Atl. Tel. Co., 70 N. J. Law, 395, 56 Atl. 303. To justify the setting aside of a verdict as against the weight of the evidence, it must be so clear as to give rise to an inference that it was the result of mistake, passion, or prejudice. Queen v. Jennings, 93 N. J. Law, 353, 108 Atl. 379; Floersch v. Donnell, 82 N. J. Law, 357, 82 Atl. 733. Tested by these rules, and considering the interest of the defendant's alibi witnesses in the controversy, their opportunity for knowledge of the subject, the influence under which they were testifying, and having due regard to the manifest inherent infirmity of the testimony of several of them, we cannot say that the verdict was against the weight of the evidence.

The next point is that the charge of court was erroneous. We think not. The argument is that the judge gave improper credence and emphasis to the testimony of one of the state's witnesses, and "cast doubt upon the alibi witnesses." Now a careful reading of the charge shows that this complaint is not well founded either in law or in fact. The rule is that a trial judge in his charge may call attention to any...