State v. Lyons

• Decision Date: 20 June 1904
• Citation: 70 N.J.L. 635,58 A. 398
• Parties: STATE v. LYONS.
• Court: New Jersey Supreme Court

58 A. 398

70 N.J.L. 635

STATE

v. LYONS.

Court of Errors and Appeals of New Jersey.

June 20, 1904.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Passaic County.

John Lyons was convicted of murder, and brings error. Affirmed.

Vivian M. Lewis, for plaintiff in error.

Eugene Emley, Pros., for the State.

MAGIE, Ch. This writ of error brings before us a judgment of conviction of the plaintiff in error of the crime of murder in the first degree. There is returned with the writ (1) the record of the judgment of conviction, (2) certain bills of exception allowed and sealed, and (3) the entire record of the proceedings had upon the trial of the cause; the last matter being returned under the provisions of section 136 of the revised criminal procedure act of 1898 (Laws 1898, p. 915, c. 237). Plaintiff in error has filed 26 assignments of error.

Although the plaintiff in error elected to take up the "entire record" with his writ of error, yet it does not appear that he has specified the causes therein relied upon for relief or reversal, as required by section 137 of the criminal procedure act, unless the assignments of error serve that purpose. The prosecutor asserted in the argument that no copy of the causes relied on for relief or reversal had been served upon him as required by the same section, and for that reason he objected to the consideration by the court of certain assignments of error, which alleged error in rulings to which no objection had been made and no exception taken at the trial. In the case of State v. Young, 67 N. J. Law, 223, 51 Atl. 939, which involved a review of a conviction of murder in the first degree, this court had before it questions arising upon sections 136 and 137 of the criminal procedure act. It appeared in that case that objection had been made at the trial to the admission in evidence of a statement made by the defendant, and claimed by the state to tend to prove his guilt. The exception to the admission of the statement in evidence over the objection had been duly allowed and sealed, and error had been assigned thereon. In dealing with that assignment it was held that the admission in evidence of a statement in the nature of a confession of the accused was a mixed question of law and fact presented to the trial judge. If there was evidence that the statement was voluntary within the meaning of the law, a finding that it was so by the trial judge was not reviewable upon error. But, as the plaintiff in error in that case bad elected to bring up with his writ of error the entire record of the proceedings at the trial, and had not specified any cause for relief or reversal under section 137, it was deemed questionable whether, upon the mere assignment of error, this court was required to examine the facts upon which the trial judge had acted in ruling to admit the statement, and whether this court could reverse thereon, if, in their judgment, the evidence was not sufficient to support the finding of fact. As the question thus presented bad not been argued, it was deemed best not to declare any opinion thereon.

But the present case seems to require a decision of the question of the extent of the review which the provisions of sections 136 and 137 compel this court to make, as there are assignments of error not based on any exceptions taken at the trial, and there are no specifications of causes for relief or reversal. Such assignments, under ordinary writs of error bringing up only the record and bills of exceptions, are entirely unavailable to bring into question matters alleged for error thereby. Robbins v. Vanderheck, 55 N. J. Law, 364, 26 Atl. 919; Wanamassa Park v. Clark, 61 N. J. Law, 611, 41 Atl. 153; Davis v. Littel, 64 N. J. Law, 595, 46 Atl. 631. Such assignments would doubtless be stricken out on motion. Delaware, L. & W. R. R. v. Nevelle, 51 N. J. Law, 322, 17 Atl. 836, 19 Atl. 538. The legislation which is now contained in section 136 of the criminal procedure act was plainly designed to enlarge the privilege and right of one convicted of crime to question the propriety of his conviction, beyond the limits of the privilege and right previously conferred by our statute, which permitted exceptions to be taken and required errors assigned thereon to be reviewed. It was not designed to supersede a review of matters reviewable under assignments of error. On the contrary, the relief permitted, when it appeared from the record of the trial that the plaintiff in error had suffered manifest wrong or injury in certain respects, is to be given "whether objection was made thereto or not," and "whether a bill of exceptions was settled, signed, and sealed thereto, and error assigned thereon or not." The plain purpose is to permit a review by writ of error (1) for errors properly assigned upon the record or bills of exception, and (2) for matters appearing in the trial record disclosing that manifest wrong or injury had been done to plaintiff in error by the course taken at the trial in respect to certain specified matters.

Matters raised by assignments of errors upon the record or upon bills of exceptions are sufficiently disclosed to the representatives of the state by the filing of such assignments. But under section 136 matters not within any exceptions, and not the proper subject of exceptions, are made reviewable. So the Legislature, by section 137, wisely required the plaintiff in error, in every case in which he elects to take up the entire record of the trial, not only to specify the causes in that record relied on for relief or reversal, other than those presented by bill of exception, but also to notify the officer representing the state of the causes relied on, by serving upon him a copy of the specifications. While there is no express provision in that section that such specifications should be placed upon the files of this court, I think it is plainly to be inferred from the direction to serve a copy thereof at least 10 days before the first day of the term at which the cause is to be heard. In no other mode can the specifications be presented to or recognized by this court. It also seems obvious that the plaintiff in error must be confined to the causes for relief or reversal shown by the specifications filed and served. The Supreme Court, in a case where the entire record of the trial was returned with the writ of error, held that no causes except those specified could be considered. State v. Hess, 65 N. J. Law, 544, 47 Atl. 806. Perhaps the court, for good reasons, might permit amendment of the specifications, or the filing of additional specifications upon proper terms. It results that causes for relief or reversal not specified as required by section 137, and not otherwise the subject of review upon exceptions and assignments, are not required to be considered by the reviewing court. There were several causes strenuously urged in this argument, which, upon this construction of the statute, we are not required to consider; but they were pointed out by assignments of error duly filed. No motion was made in behalf of the state to strike out such assignments because they were not based upon any exception allowed and sealed. Had such a motion been made, the court might, perhaps, have required as a condition of striking them out, that plaintiff in error should be permitted to put in specifications of causes requisite to present those points. Whether the court should give such a permission as a matter of right is not intended to be decided. It is sufficient to say that the practice on this legislation has been unsettled, and we have deemed it proper, in favorem vitæ, to consider the questions argued, although not presented by proper exceptions, or included in any specifications of causes as required by the statute.

It is first argued that the plaintiff in error suffered wrong and injury because of the refusal of the trial judge to permit the interposition of a peremptory challenge to a juror called. This contention was put upon two grounds: (1) That the oath was administered to him so quickly as not to permit the interposition of the challenge, and (2) that the challenge was in fact made before the juror was actually sworn, and so was in time, and should have required the rejection of the juror. There was no exception taken to the refusal. The first ground is entirely lacking in support from the record of the proceedings at the trial as certified by the court of oyer and terminer. By that certificate it appears that nine jurymen had been called, and had been separately sworn in the mode customary in this state in the trial of such indictments. The certificate then proceeds: "After nine jurymen had thus been separately sworn and had taken their seats in the jury box, the name of one Daniel Lappin was drawn by the sheriff from the box as the next juryman. The said Lappin, being called, came to the bar and confronted the prisoner, whereupon the clerk of the court, pursuing the form that had been followed in each previous instance, said: 'Juryman, look upon the prisoner; prisoner, look upon the juryman. Do you challenge?' The said Lappin remained standing in the presence of the prisoner awaiting a challenge until a proper and reasonable time had elapsed for a challenge to be made, after which, no challenge having been made either by the prisoner or by the prosecutor of the pleas, the court ordered the said clerk to swear the said Daniel Lappin as a juror. Thereupon, the said Daniel Lappin having placed his hand upon the book, the clerk proceeded to administer to him the juror's oath. After the clerk had commenced to recite the words of the oath to the said Daniel Lappin, and before he had completed the words of the oath, counsel for the prisoner arose and communicated to the court a desire to peremptorily challenge the said Daniel Lappin. The court refused to entertain such challenge at that time, on the ground that the proper time for the prisoner...