State v. Guarino

• Citation: 147 A. 395
• Decision Date: 14 October 1929
• Docket Number: No. 39.,39.
• Parties: STATE v. GUARINO.
• Court: United States State Supreme Court (New Jersey)

147 A. 395

STATE

v. GUARINO.

No. 39.

Court of Errors and Appeals of New Jersey.

Oct. 14, 1929.

(Syllabus by the Court.)

Error to Supreme Court.

Gerardo Guarino was convicted of assault and battery, atrocious assault and battery, and assault and battery with intent to kill, said conviction was affirmed by the Supreme Court (6 N. J. Misc. Rep. 947, 143 A. 142), and defendant brings error. Reversed for new trial.

J. Victor D'Aloia, of Newark, for plaintiff in error.

Orville V. Meslar, of Morristown, Prosecutor of the Pleas, for the State.

WALKER, Chancellor. The plaintiff-inerror was indicted by the Morris county grand jury on three counts, the first charging him with assault and battery, the second, atrocious assault and battery, and the third, assault and battery with intent to kill. The jury returned a verdict of guilty as charged, and the court sentenced the defendant thereon. From this judgment the plaintiff-inerror sued out a writ of error to the supreme court, which affirmed the judgment under review. The plaintiff-inerror then sued out a writ of error to this court, and assigns an appropriate error that the supreme court should not have affirmed, but reversed, the conviction. This brings before this court all of the errors alleged in the supreme court, which were nine in number (and also nine reasons for reversal, which were identical with the errors assigned), if the plaintiff-inerror elected to argue them here. Burhans v. Paterson, 99 N. J. Law, 490, 123 A. 883. This case was submitted on briefs, and in the brief for the plaintiff-inerror it is stated that "the errors complained of (here) relate to the charge of the court on the subject of alibi. As they are the only errors urged before us that is all we have to consider. The following portions of the court's charge are those which are challenged by the plaintiff-inerror:

"If the cutting, the slashing, or stabbing was done by some other person, than the defendant, then you ask the question, whether or not you are satisfied from the evidence beyond a reasonable doubt, that the defendant was present, and aiding and abetting in the commission of the crime charged in the indictment? And after you have considered all of that evidence, and answered those questions, you will go further, and you will then take up the question of whether or not the defendant has satisfied you from the evidence he introduced that he was not present at the time and place charged by the State.

"The burden of proving the defendant's presence elsewhere than at the place and at the time charged in the indictment, is not upon the State, that is a defense which the defendant interposes, and his testimony, and all the testimony introduced on his behalf is put to you to say whether or not you believe it, because you are the sole judges.

"Now, if you believe from the evidence introduced in support of this alibi that the defendant was not present at the time and place charged by the State, then the defendant is said to have established his alibi, and you are the sole judges from all of the testimony so introduced, as to whether or not he has established to your satisfaction the proof that he was not present at the time and place charged in the indictment."

The State says that the plaintiff-inerror points out certain portions of the charge which place the burden of proof upon the defendant himself to establish his alibi beyond a reasonable doubt, and then itself points out certain portions of the charge favorable to the State, the principal one of which is as follows:

"The burden of so proving the defendant guilty rests upon the State throughout the whole case and never shifts. This rule is the ultimate one surviving all others, and it is an independent and final protection of the defendant, and notwithstanding all other presumptions and burdens, if any arise in this case, it remains upon the State until and after all the evidence is in, and then the jurors must consider upon all the evidence in the case, whether or not this burden has been sustained."

And the prosecutor further asserts that the charge must be read as a whole, and if on so reading it, it appears that the jury could not have been misled and the whole gives a correct statement of the law, the charge is sufficient. This, of course, depends upon what the charge is, and this court has spoken upon that subject. In Birtwistle v. Pub. Serv. By. Co., 94 N. J. Law, 408, 112 A. 193, we said that whether the objectionable matter amounts to an expression in the charge which is to be interpreted by the context and the whole charge and is therefore not erroneous, or whether it is an erroneous instruction not cured by the correct one unless the illegal one is withdrawn, is a question; citing Redhing v. Central R. R. Co., 68 N. J. Law, 641, 645, 54 A. 431, 432, on the first proposition, and Collins v. Central R. R. Co., 90 N. J. Law, 593, 101 A. 287, on the second. In the first, or Redhing Case, we said: "The next objection urged on behalf of the defendant is that the trial justice, in one clause of his charge to the jury, made the right of the plaintiff to cross the tracks depend on his 'honest belief,' instead of his 'reasonable belief.' But an examination of the whole charge shows that by frequent expressions the jury were instructed that it was incumbent on the plaintiff to 'exercise ordinary care,' to believe 'only with reason,' to act as a 'prudent man would,' to act as 'a man of ordinary prudence, judgment, and discretion,' not to do 'anything negligent,' and that, if he failed in this respect, the verdict must be for the defendant. It is unreasonable to suppose that, with these numerous utterances sounding in their ears, the jurors could have been misled by a single expression which omitted the proper qualifications. They must have understood that an 'honest belief meant such a belief as was stated in the charge generally —a belief having a reasonable basis. As was said by Mr. Justice Strong in Evanston v. Gunn, 99 U. S. 660, 668, 25 L. Ed. 300, 'sentences may, it is true, be extracted from the charge which, if read apart from their connection, need qualification. But the qualifications were given in the context, and the jury could not possibly have been misled.'" And in the second, or Collins Case, this court said that where the court incorrectly charged a rule of law bearing upon the subject under review, and subsequently charged the correct rule (assuming it did) it does not cure the trouble, for as Mr. Justice Parker said in State v. Tapack, 78 N. J. Law, 208, 72 A. 962, 963. "The rule is well settled that an erroneous instruction followed or accompanied by a correct one is not cured by the latter, unless it is also expressly withdrawn, as the jury is left at liberty to adopt either." These cases were followed by others in this court. In State v. Timmerari, 96 N. J. Law, 442, 115 A. 394, we said: "If in his charge to the jury the judge uses a word or phrase the very opposite of which he intends, and his true intent and meaning are to be gleaned from the other parts of the charge, and, if upon the whole charge the jury cannot reasonably be thought to have been misled, there is no error." In J. D....