State v. Jayson
| Decision Date | 14 June 1920 |
| Docket Number | No. 23.,23. |
| Citation | 111 A. 7 |
| Parties | STATE v. JAYSON. |
| Court | New Jersey Supreme Court |
Error to Supreme Court.
Fred Jayson was convicted of assault and battery in the quarter sessions, judgment was affirmed on error by the Supreme Court, and he brings error. Affirmed.
Edward Schoen, of Newark, for plaintiff in error.
J. H. Harrison, Prosecutor of the Pleas, and Wilbur A. Mott, Asst. Prosecutor of the Pleas, both of Newark, for the State.
The grand jury of Essex county found an indictment against Fred Jayson containing two counts, one charging him with simple assault and battery upon Frank Scheel, and the other with atrocious assault and battery upon the same person by maiming and wounding him with a knife. He was convicted in the quarter sessions of simple assault and battery. The judgment upon that conviction was brought into the Supreme Court for review, by a writ of error, and was there affirmed. The judgment is now before us for review on a writ of error to the Supreme Court.
No part of the evidence taken at the trial was returned with the writ of error, but counsel agree that "the charge of the judge contains a substantial summary of the testimony." The assignments of error are all predicated, either upon alleged errors in the charge, or on the refusal to charge as requested. We are of the opinion that the judgment should not be disturbed.
The first point argued is that the judge erroneously defined atrocious assault and battery. Considering the instructions as a whole, we incline to think that the definition was proper. But whether so or not is unimportant, because, if erroneous, it could not have prejudiced the defendant, since the jury practically acquitted him of atrocious assault and battery by finding him guilty only of simple assault and battery. State v. Moynihan, 106 Atl. 817.
The next point is that the judge erred in his instruction upon the right of self-defense, in that he did not extend it to the taking of life. But this was the trial of an indictment for assault and battery (not involving the taking of life), and the instruction, which was that, in defending himself from an assault made upon him, a person's act is justified when that act is, or reasonably appears to be, necessary in order to protect himself from bodily harm, did not prejudice the defendant merely because the court did not extend the right to the taking of life in accordance with the rule applicable to homicide cases that a man may protect himself, even to the extent of taking the life of his adversary when that act is, or reasonably appears to be, necessary in order to preserve his own life, or to protect himself from serious bodily harm. State v. Bonoflglio, 67 N. J. Law, 239, 52 Atl. 712, 54 Atl. 99, 91 Am. St. Rep. 423.
The defendant seems to contend that the instruction was erroneous, in that it made the justification of the defendant's act to depend upon reasonable apprehension of "bodily harm," instead of "serious bodily harm," essential in homicide cases. But we find it unnecessary to deal with that contention further than to say that, if erroneous, the error was prejudicial only to the state, and not to the defendant, and of course will not lead to a reversal. Slate v. Mellillo, 77 N. J. Law, 505, 509, 71 Atl. 671.
We also think that it was not erroneous for the trial judge, after charging that the act of the defendant was justified if that act was or reasonably...
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State v. Kelly
...481; see State v. Bess, supra, 53 N.J. at 16, 247 A.2d 669; State v. Fair, supra, 45 N.J. at 93, 211 A.2d 359; State v. Jayson, 94 N.J.L. 467, 471, 111 A. 7 (E. & A. 1920). It is perhaps worth emphasizing here that for defendant to prevail, the jury need not find beyond a reasonable doubt t......
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McAndrew v. Mularchuk
...in finding liability on the part of the borough. Cf. State v. Williams, supra, 29 N.J. at p. 40, 148 A.2d at p. 29; State v. Jayson, 94 N.J.L. 467, 111 A. 7 (E. & A. 1920); State v. Agnesi, 92 N.J.L. 53, 58, 104 A. 299 (Sup.Ct.1918); State v. Jones, 71 N.J.L. 543, 60 A. 396 (E. & A. 1905); ......
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State v. Goldberg
...the implications possibly deducible from the decisions in State v. Wells, supra, State v. Zellers, supra, and in State v. Jayson, 94 N.J.L. 467, 111 A. 7 (E. & A.1920) to comprehend an obligation to retreat in instances of mere assault and battery, there appears to be no reported decision i......
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State v. Fuersten
...to a reversal of the judgment. State v. McDonald, 89 N. J. Law, 421, 99 A. 128, affirmed, 91 N. J. Law, 233, 103 A. 165; State v. Jayson, 91 N. J. Law, 467, 111 A. 7; State v. Grace, 98 N. J. Law, 341, 119 A. 767. If, on the other hand, as seems to be suggested now, the excluded evidence wa......