State v. Lerman, 69.

• Decision Date: 20 October 1930
• Docket Number: No. 69.,69.
• Citation: 151 A. 867
• Parties: STATE v. LERMAN.
• Court: New Jersey Supreme Court

151 A. 867

STATE

v. LERMAN.

No. 69.

Court of Errors and Appeals of New Jersey.

Oct. 20, 1930.

Syllabus by the Court.

Where a defendant on trial for a crime testifies in his own behalf that his wife was home on the occasion of the alleged crime, and denies that he informed a certain person that his wife had left him, and that person was called in rebuttal; and (over objection) was permitted to testify that she saw defendant at a certain time and place, and that he told her that his wife had been absent from home for two months or more, which made it appear that she was not present on the occasion of the crime. Held:

(1) That it was the duty of the State to show that the defendant had made a statement to the witness that his wife had been absent from home for the time mentioned.

(2) That such testimony was not collateral.

(3) That any fact that bears against the credibility of a witness is relevant to the issue being tried, and the party against whom the witness is called, has a right to have the fact of credibility laid before the jury in order to aid them in determining the credit to be accorded to the person testifying.

(4) Cross-examination on matters either directly in issue or directly relevant to the issue, is a matter of right, and its exclusion is error.

(5) Impeachment of a witness is an attack upon his general reputation for truth and veracity, and is not, strictly speaking, the effect which is produced upon the credibility of his testimony by proof of contradictory statements made by him upon a matter in issue or relevant thereto.

Error to Supreme Court.

Isador Lerman was convicted of assault and battery upon, and criminal abuse of, a female child over the age of twelve and under the age of sixteen years; such conviction was affirmed by the Supreme Court (147 A. 651, 7 N. J. Misc. R. 986), and he brings error.

Affirmed.

Harold Simandl, of Newark, for plaintiff in error.

Joseph L. Smith, Prosecutor of the Pleas, and Joseph E. Conlon, Asst. Prosecutor of the Pleas, both of Newark, for the State.

WALKER, Chancellor.

The plaintiff-inerror was convicted in the Essex quarter sessions on an indictment charging assault and battery upon, and criminal abuse of, Sally Bigams, a female child over the age of twelve years and under the age of sixteen, and was sentenced therefor. The entire record of the proceedings had upon the trial was taken up to the supreme court in error, under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), and that court affirmed the conviction in an opinion per curiam, 147 A. 651, 7 N. J. Misc. R. 986.

Only one question is assigned for error here. In the brief submitted on behalf of the plaintiff-inerror it is stated that the "error complained of deals with the erroneous admission of evidence by the trial court and was laid under assignment and reason No. 5 in the court below," and that was argued by counsel. In the brief submitted for the State it is said that the "only assignment argued by plaintiff-inerror is assignment 5, which brings for error the rebuttal testimony of Margaret T. Dugan on behalf of the State." The point, among others, was argued in the court below and that entitles plaintiff-inerror to argue it here.

The crime was committed on the evening of May 21, 1927. The plaintiff-inerror, testifying in his own behalf, denied the assault. He was asked on cross-examination:

"Q. Before Sally left your employ, you went to Miss Dugan, being referred to, her by the Missing Persons Bureau, and you told Miss Dugan that your wife had left you, that she was running around with a colored man, and that you wanted to make a complaint against her?

"A. I didn't."

In rebuttal the State called Miss Dugan and, over objection, she was permitted to testify that she saw the plaintiff-inerror, at police headquarters, in the Missing Persons Bureau on July 26th. And she was asked the following question:

"Q. Did Mr. Lerman on that occasion tell you in effect that his wife had been absent from the home for two months or more, that she had absented herself on frequent occasions, that she was running around with a negro, and did he ask you if he could make a warrant out and have a warrant made out for her arrest?"

The question is the question which is made the subject of the assignment and reason number 5, and it was objected to, and the last part, namely, that she was running around with a negro, and did not he ask you if he could make (take) a warrant out and have a warrant made out for her arrest, was stricken out as not germane, and the witness asked: "Did he not tell you that?" (meaning the first part of the question as to whether Lerman told witness that his wife had been absent from home for two months or more, and had absented herself on frequent occasions)...