State v. Leo

Decision Date01 September 1910
Citation77 A. 523,80 N.J.L. 21
PartiesSTATE v. LEO.
CourtNew Jersey Supreme Court

Error to Court of Oyer and Terminer, Essex County.

Michael Leo was convicted of murder, and he brings error. Affirmed.

Argued November term, 1909, before GUMMERE, C. J., and GARRISON and VOORHEES, JJ.

Riker & Riker, for plaintiff in error.

Wilbur A. Mott, Prosecutor of the Pleas, for the State.

GUMMERE, C. J. The plaintiff in error was indicted by the grand jury of Essex county for the murder of his wife; the specific charge being that he intentionally set fire to her clothing or caused fire to be set thereto, thereby producing her death. The trial upon this indictment resulted in his conviction; the verdict being that he was guilty of murder in the second degree. We are now asked to set aside that conviction because (as it is alleged) of injurious errors committed by the trial court in its rulings upon evidence, and in the charge to the jury.

Two assignments of error are directed at rulings upon evidence. The first of them challenges the action of the trial court in refusing to permit one White, a witness produced upon the part of the defendant, and who admitted on his cross-examination that he had been convicted in the Essex oyer and terminer on an indictment for criminal conspiracy, to testify that his conviction was illegal. The first section of our evidence act (P. L. 1900, p. 362) provides that no person offered as a witness in any action of a criminal nature shall be excluded by reason of his having been convicted of crime, but permits such conviction to be shown on the cross-examination of the witness, or by the production of the record thereof, for the purpose of affecting his credit. The object of the Legislature in permitting the conviction of a witness to be shown upon his cross-examination is, manifestly, to relieve from the necessity of producing the record thereof when the witness himself admits it. Whether the conviction is proved in the one way or the other, however, the result is the same, to this extent: That it establishes the existence of a judicial record of his guilt. That was the effect of White's testimony in the present case. The existence of the record having been shown, the purpose of the excluded testimony was to destroy its value as evidence of the guilt of the witness. The trial court properly refused to permit this to be done. If the purpose of counsel for the defendant was to put before the jury the opinion of the witness as to the legality of his conviction, that opinion was without probative force. Looked at as an offer to prove as a fact that the conviction of the witness was illegal, it was an attempt to inject into the case an issue entirely foreign to that which the jury had been sworn to try. This the statute does not contemplate. It permits the fact of the conviction to be shown for what it is worth as affecting the credibility of the witness, without regard to its justice or legality. The offered testimony was further objectionable because its purpose was to nullify a judgment of the Essex oyer and terminer in violation of the universally recognized rule that a judicial record imports absolute verity, and is conclusive concerning the matters to which it relates. Amer. & Eng. Ency. of Law (2d Ed.) vol. 24, p. 193, and notes.

The second assignment of error, which challenges the legality of a ruling upon evidence, is directed at the exclusion of testimony showing that the defendant, at the time of his wife's funeral, looked upon her dead body, touched and kissed it. It would seem from the argument submitted to us by counsel that this testimony is thought to have been legally admissible because such acts of the defendant were evidence of the existence of love for his deceased wife during her life. Admitting this to be so, the defendant's act was significant only because by it he inferentially declared that his wife held his affection while she was living. If he had so stated in words, at the time of his wife's funeral, that statement would clearly have been inadmissible, by reason of the elementary rule which excludes self-serving declarations. A declaration to be inferred from conduct falls within the same rule. People v. Rathbun, 21 Wend. (N. Y.) 509, 519; Voorhees v. Hendrickson, 29 N. J. Law, 101, 104. There was no error in the exclusion of this evidence.

The first assignment of error which is directed at the charge to the jury challenges the soundness of the following instruction: "There is a rule of criminal law that everybody is presumed to be innocent; the law does not presume anybody to be guilty. That goes through every case; it goes through this case. If you come to the conclusion, however, as a result of your deliberation, that there is guilt proved—any degree of criminality under this indictment—if course that presumption of innocence cannot stand after that. It does exist up to that time, and unless you do find there is guilt that presumption of innocence would entitle him to a verdict of acquittal." The contention of counsel for the defendant, upon this assignment, is that the presumption of innocence exists until the jury has arrived at a verdict; in other words that it continues after the jury have determined the fact that the defendant is guilty, and until they have also determined the degree of his guilt. And the complaint is that the instruction does not conform to this principle. We think the language used by the court bears the construction put upon it by counsel; but we find no error in the instruction. In this state the defendant in an indictment for murder is presumed to be innocent until he is found by the jury to be guilty of a criminal homicide. When the jury have reached that conclusion, then, under the law as administered in this state, the presumption immediately arises that the crime of which he is guilty is murder in the second degree. Brown v. State, 62 N. J. Law, 666, 42 Atl. 811. This latter presumption, being absolutely antagonistic to that of innocence, necessarily destroys it. There is no merit in this assignment.

The next assignment of error is directed at the following excerpt from the charge of the court upon the right of the defendant to the benefit of a reasonable doubt: "In order to warrant a conviction for any crime under this indictment, the state must prove the facts sufficient for that purpose by evidence beyond a reasonable doubt. A reasonable doubt would exist when the judgment of the jury, after a careful review of all the evidence, finds itself unconvinced of the guilt of the prisoner. If such a doubt exists you are bound to give the benefit of it to the prisoner, but you are not bound to give him the benefit of anything but such a reasonable doubt."

The criticism upon this part of the charge is that the definition of "reasonable doubt" is erroneous, and the contention is that by the instruction the jury were not bound to give the defendant the benefit of anything but a reasonable doubt as thus defined. The trial court, in this instruction, adopted the language of Magie, J., in his...

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16 cases
  • State v. Tansimore
    • United States
    • New Jersey Supreme Court
    • January 23, 1950
    ...Brown v. State, 62 N.J.L. 666, 42 A. 811 (E. & A.1897); State v. Mangano, 77 N.J.L. 544, 72 A. 366 (E. & A.1909); State v. Leo, 80 N.J.L. 21, 77 A. 523 (S.Ct.1910); State v. Kubaszewski, 86 N.J.L. 250, 92 A. 387 (E. & A.1914); State v. Cooper, 2 N.J. 540, 67 A.2d 298 (1949). A specific inte......
  • State v. Nagy
    • United States
    • New Jersey Superior Court — Appellate Division
    • July 13, 1953
    ...crimes. The phrase 'production of the record' leaves no ground for conjecture. A certified copy of the conviction, State v. Leo, 80 N.J.L. 21, 77 A. 523 (Sup.Ct.1910), of the production of the actual minutes of the court satisfies this requirement where the conviction is in this State, 70 C......
  • State v. Blechman.
    • United States
    • New Jersey Supreme Court
    • December 26, 1946
    ...as it goes. Such instruction as the accused deemed ample should have been made the subject of a specific request to charge. State v. Leo, 80 N.J.L. 21, 77 A. 523; State v. Johnson, 90 N.J.L. 21, 100 A. 242, affirmed 91 N.J.L. 611, 104 A. 593; State v. Barone, 96 N.J.L. 417, 115 A. 668; Stat......
  • State v. H.G.G.
    • United States
    • New Jersey Superior Court — Appellate Division
    • June 24, 1985
    ...a conviction of a criminal offense imports absolute verity and is conclusive concerning the matters to which it relates, State v. Leo, 80 N.J.L. 21, 77 A. 523 (1910), an order or proceeding in excess of jurisdiction is null and is subject to collateral attack. Miske v. Habay, 1 N.J. 368, 37......
  • Request a trial to view additional results

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