State v. Hummer

• Decision Date: 16 May 1907
• Citation: 81 N.J.L. 430,67 A. 294
• Parties: STATE v. HUMMER.
• Court: New Jersey Supreme Court

67 A. 294

81 N.J.L. 430

STATE

v. HUMMER.

Court of Errors and Appeals of New Jersey.

May 16, 1907.

On petition for rehearing. Petition denied.

For former report, see 65 Atl. 249.

GARRISON, J. This is an application for a rehearing. The petitioner was convicted by the sessions of the crime of carnal abuse. This judgment was affirmed in the Supreme Court and afterwards in this court. The facts fully appear in opinions filed in each court. State v. Hummer (Sup.) 62 Atl. 388; State v. Hummer (Err. & App.) 65 Atl. 249.

Upon one point the ground of affirmance was different in the two courts. In the Supreme Court the question put to the chief of police, viz., "There were other girls down there making charges against this man?" was vindicated as proper redirect examination; whereas, in this court we dealt with the denial by the trial judge of the motion to strike out this question after it had been answered, and sustained such denial.

The ground of the present application is that the plaintiff in error is entitled to have this court decide whether the question put to the chief of police was legal or illegal, and, if illegal, to have the judgment of the sessions reversed.

In support of this contention, and as essential to its soundness, counsel construes the provision of the criminal procedure act that a new trial shall be granted "if manifest wrong or injury was suffered by the plaintiff in error in the admission of testimony" to mean that a criminal judgment must be reversed if any illegal testimony was admitted; that is to say, went to the jury. It is claimed that the testimony of the chief of police was in this sense "admitted," and hence that the judgment must be reversed if the question put to him was illegal, as counsel argues that it was.

In just what sense a question propounded to a witness can be said to be illegal, apart from any judicial ruling upon it, is not at all clear. Irrelevant a question may be in that it calls for irrelevant, and hence incompetent, testimony; but, in order that a question or its responsive answer should become illegal, it would seem to be essential that some legal right was invaded by its admission. Counsel, however, construes the statute differently, and contends, in effect, that a criminal judgment must be reversed whenever it appears that at the trial incompetent testimony went to the jury.

The same result must logically follow from this construction if such incompetent testimony be adduced by the defendant's counsel at the trial, or be acquiesced in by him, or even if it be given by the defendant himself upon the witness stand.

If any such rule is laid down by the statute, it is by force of its provision for reversal upon error: "If it appears from the record that the plaintiff in error on the trial below suffered manifest wrong or injury either in the admission or rejection of testimony whether objection was made thereto or not."

The meaning of this language is to be ascertained by the ordinary canons of construction.

The phrase "admission or rejection of testimony" clearly imports judicial action. No one but the trial court can reject testimony. Hence, as "rejection of testimony" must imply action by the court, the same sort of meaning is by the familiar rule to be given to the word "admission" as an associated term of precisely the same nature...