State v. Karpowitz

• Citation: 120 A. 40
• Decision Date: 05 March 1923
• Docket Number: No. 39.,39.
• Parties: STATE v. KARPOWITZ.
• Court: United States State Supreme Court (New Jersey)

120 A. 40

STATE

v. KARPOWITZ.

No. 39.

Court of Errors and Appeals of New Jersey.

March 5, 1923.

(Syllabus by the Court.)

Error to Supreme Court.

Stanley Karpowitz was convicted in the Essex county court of quarter sessions of an atrocious assault and battery, and from a judgment of the Supreme Court reversing the judgment, the State brings error. Reversed, and judgment of county court affirmed.

John O. Bigelow, of Newark, for the State.

Charles M. Mason, of Newark, for defendant in error.

KATZENBACH, J. The defendant in error, Stanley Karpowitz, was indicted by the Essex county grand jury for atrocious assault and battery upon Robert Hummel. Karpowitz was tried by the Essex county court of quarter sessions and convicted. He removed the judgment to the Supreme Court by writ of error. The entire record was certified to the Supreme Court under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863). One of the specifications of causes for reversal was that the verdict was contrary to the weight of the evidence. The Supreme Court reversed the judgment upon this ground. The other grounds for reversal were decided in favor of the state. From the judgment of the Supreme Court the state has taken a writ of error and seeks a reversal of the judgment of the Supreme Court and an affirmance of the judgment of the Essex quarter sessions.

The evidence shows that on April 5, 1921, Hummel, the complaining witness, who lived at Bloomfield with his parents, was calling upon a friend, a young woman, who asked him to go to a bakery and purchase for her a loaf of bread. Hummel says that he left the house about 9 p. m., and rode his bicycle to a store. Just as he arrived at the store he was hit in the breast by a stick. He placed his bicycle against the store window. While in the store he saw a leg kick over his bicycle. He rushed from the store, saw a number of boys outside, and said to them:

"Which one of you fellows kicked over that wheel? You fellows are always looking for trouble. A fellow cannot come up to this end of the town unless he is molested."

He was then struck a blow over the back of the head. He remembers that he was on his back; then he remembers standing in a circle; that the boys were hitting him and yelling, "Kill him Karp" (Karp was the nickname of the defendant in error); that he knew nothing until he woke up at a hospital at 6 a. m. the following morning. It appeared from other testimony that he went back to the house of the young woman upon whom he had been calling, with his collar and tie torn off, his clothes soiled, and physically weak, and while attempting to wash his face fell unconscious. A doctor was called, and he was taken to the hospital. The medical testimony showed that he had a fracture at the base of the skull on the right side, bruised marks on his chest and back, and a spinal puncture. He was operated on, and the brain pressure relieved by removal of some of the bone and drawing of fluid from the brain. He remained at the hospital about six weeks, was then removed to his home, and confined to his bed. The trial was some seven months after the occurrence. He was then under the care of a physician. He had a peculiar jump or inability to walk, impaired eyesight, and considerable pain in the head and back.

The version of the affair given by Karpowitz and his four companions was that Hummel's wheel fell to the sidewalk accidentally; that thereupon Hummel rushed from the store using improper language, aimed a blow at Karpowitz which did not land; that Karpowitz then hit Hummel on the jaw. Hummel fell and was picked up by one of the crowd. Hummel then re-entered the store, came out with a bottle of soda raised over his head, which he threw at Karpowitz. Hummel and Karpowitz grabbed one another, but were immediately separated. Karpowitz and his friends ran away. Hummel threw stones at them, and then mounted his bicycle and rode away. The Supreme Court said:

"The ground on which we think this judgment should be reversed is that in our judgment the verdict was against the weight of evidence. A careful examination of the testimony leads us to the conclusion that the complaining witness began the attack by striking or attempting to strike with his fist one of the group of which mention has been made, and that he was felled to the ground by a return blow, striking on the back of his head and sustaining the injuries in question by the fall."

In the case of State v. Knight, 96 N, J. Law, 461, 115 Atl. 569, 19 A. L. R. 733, this court upheld the constitutionality of the act of April 12, 1921 (P. L. 1921, p. 951), which provides that in criminal cases courts of appeal may review the question whether a verdict of guilty is against the weight of the evidence. In the case of State v. Morehous, 117 Atl. 296, this court said:

"This statute [referring to the act of April 12, 1921] requires that an assignment of error be made that the verdict is against the weight of the evidence. The effect of such an assignment is the same as that on a rule to show cause where the reason assigned is that the verdict is against the weight of the evidence. The competency of the evidence is not to be considered. The evidence is not to be weighed after eliminating such testimony as the court upon review may feel was improperly admitted, but to be weighed as it was presented to the jury in its totality."

The rule of weighing evidence has thus been pronounced in this court to be the same in a criminal case as in a civil case.

To justify a court in setting aside in a civil case a verdict of a jury on the ground that it is against the weight of the evidence, it must so clearly appear as to give rise to the inference that it is the result of mistake, passion, prejudice, or partiality. Floersch v. Donnell, 82 N. J. Law, 357, 82 Atl. 733; Queen v. Jennings, 93 N. J. Law, 353, 108 Atl. 379.

The fact that the witnesses for the defense outnumbered these of the plaintiff does not in itself establish the weight of the evidence. Baumann v. Hamburg American Packet Co., 67 N. J. Law, 250, 51 Atl. 461;...