State v. Heller

• Decision Date: 20 October 1924
• Citation: 126 A. 298
• Parties: STATE v. HELLER.
• Court: New Jersey Supreme Court

126 A. 298

STATE

v. HELLER.

Supreme Court of New Jersey.

Oct. 20, 1924.

Error to Court of Quarter Sessions, Mercer County.

Harry Heller was convicted of aiding, counseling, procuring, or consenting to setting of fire to or burning of merchandise, and brings error. Affirmed.

Argued before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

W. Holt Apgar, of Trenton, for plaintiff in error.

William H. Geraghty, of Trenton, Prosecutor of the Pleas, for the State.

PER CURIAM. The defendant was indicted for a violation of section 126 of our Crimes Act (Comp. Stat p. 1786), which makes punishable as a high misdemeanor the aiding, counseling, procuring, or consenting to the setting fire to or burning of any goods, wares, or merchandise, with intent to prejudice any person or corporation that has underwritten any policy of insurance thereon. The specific charge laid against him was that he aided and procured and consented to the setting fire to and burning of a lot of shoes, boots, and blankets in his possession in a store in the city of Trenton, which he occupied as lessee; his purpose being to defraud certain insurance companies which had issued policies to him, protecting him against loss resulting from the burning of the property insured. The trial resulted in his conviction, and he now seeks to have that conviction reversed, for reasons which will presently be dealt with. The first contention is that there should be a reversal because of the refusal of the court to postpone the trial when the cause was moved by the state; the application for postponement being based upon the fact that a copy of the indictment and a list of the jurors had not been served upon him at least two days before the trial, as required by section 54 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1837). The motion to postpone was based upon the assumption that the indictment charged the defendant with the crime of arson. But this is manifestly a plain misconception of the fact. Arson, at common law and under our statute, consists in willfully and maliciously burning or causing to be burned the dwelling house of another, or any kitchen, shop, or other outhouse that is parcel thereof, or belonging or adjoining thereto. That the offense laid in the indictment does not come within this definition, the very wording of the indictment demonstrates.

The next contention is that the court committed legal error in refusing to "dismiss the indictment" on the motion of defendant's counsel, for the reason that the prosecutor of the pleas, in his opening address to the jury, stated that the offense laid against the defendant in the indictment was arson. Whether such a statement was made or not does not appear from the case sent up with the writ of error, as the opening address of the prosecutor of the pleas constitutes no part of it. Assuming, however, that such an erroneous statement was made, it certainly did not entitle the defendant to a dismissal of the indictment, which would seem to mean a quashing thereof or the entry of a nolle pros. The most that can be said in favor of the defendant's right, conceding, for the purpose of disposing, of this contention, that the statement was harmful, is that he was entitled to have the court direct a mistrial, because of the erroneous statement, and so an opportunity afforded him to be tried before another jury.

The next contention is that the court erroneously permitted the teller of a bank, in which the defendant carried his account, to testify as to the state of that account at the time of the fire, and in refusing to strike out his testimony upon application made for that purpose. We think the testimony was clearly admissible, for the reason that a small bank account would have some...