State v. Kysilka

• Decision Date: 16 March 1914
• Docket Number: No. 1.,1.
• Citation: 85 N.J.L. 712,90 A. 309
• Parties: STATE v. KYSILKA.
• Court: New Jersey Supreme Court

90 A. 309

85 N.J.L. 712

STATE

v. KYSILKA.

No. 1.

Court of Errors and Appeals of New Jersey.

March 16, 1914.

(Syllabus by the Court.)

Error to Supreme Court.

Joseph Kysilka was convicted of murder in the second degree and brings error. Affirmed.

For opinion of Supreme Court, see 84 N. J. Law, 6, 87 Atl. 79.

Julius Lichtenstein and Herbert E. Davis, both of Hoboken (Alexander Simpson, of Jersey City, of counsel), for plaintiff in error. Robert S. Hudspeth, Prosecutor of the Pleas, of Jersey City, for the State.

WHITE, J. The defendant was convicted of murder in the second degree. The evidence indicated that he committed the crime by shooting, with a pistol, one Steve Glaser in the basement of a hotel in Hoboken, where deceased was employed as a waiter. The only other person in the room at the time was a little 7 1/2 year old Polish boy, Paul Bisan, who testified to seeing the defendant shoot Glaser. At the trial Bisan was asked to pick out in the courtroom the man who did the shooting, and after two trips around the room, said he was not present. As a matter of fact, the defendant was sitting in plain view, and but a few feet away. The state then proved, over defendant's objection and exception, that shortly after the shooting the boy had been taken to the jail where 12 or 15 men, including the defendant, had been lined up, and upon being directed to Indicate and lay his hand on the man who did the shooting, if he was there, went down the line slowly until he came to the defendant, and then laid his hand on him and said he was the man. As was said by the Supreme Court in this case (84 N. J. Law, 6, 87 Atl. 79) this evidence was admissible, not as having any probative force to connect the defendant with the shooting, but as tending to neutralize, i. e., discredit, the adverse effect of Bisan's unexpected testimony to the contrary —citing State v. D'Adame, 84 N. J. Law, 386, 86 Atl. 414.

It is urged, however, that it was the duty of the trial court to limit the scope of this evidence to this purpose, and to warn the jury against permitting it to have any further effect.

In State v. D'Adame, supra, we said: "In fact, as a general rule, it may be said that a trial judge, admitting evidence of this character * * * (and the admittance of such evidence is largely discretionary with him, depending upon the particular circumstances of each case) should, in any event, limit its force and effect to the purpose for which only it is admissible, viz., as tending to efface or neutralize the evidence which it discredits. He should also instruct the jury * * * that they are to entirely disregard it as in any way tending to prove the truth of the facts which it asserts. * * * In a case barren of other direct proof of the facts which such contradictory statements would tend to prove, if admissible for that purpose, the absence of such instructions, even when not requested, might be sufficiently injurious to warrant reversal."

We feel that we cannot make this warning too emphatic. Evidence of this character is obviously extremely dangerous, and, where a trial judge, in the exercise of his sound discretion, thinks its admission necessary in order to prevent a miscarriage of justice because of a "surprise" in the form of an adverse evidential statement on a material point where the party had good and sufficient reason to expect a favorable one, he should take adequate measures to prevent it from doing a much greater wrong than the one it was intended to cure. The very fact that men in their everyday experiences constantly accept and rely upon, or reject and disregard, hearsay evidence, accordinglyly as the circumstances may or may...