State v. McDonald

• Decision Date: 07 March 1918
• Docket Number: No. 108.,108.
• Citation: 103 A. 165,91 N.J.Law 233
• Parties: state v. Mcdonald.
• Court: New Jersey Supreme Court

103 A. 165

91 N.J.Law 233

state

v. Mcdonald.

No. 108.

Court of Errors and Appeals of New Jersey.

March 7, 1918.

(Syllabus by the Court.)

Error to Supreme Court.

James McDonald was convicted of robbery, and from a judgment of the Supreme Court (89 N. J. Law, 421, 99 Atl. 128), affirming the conviction, he brings error. Affirmed.

John Milton, of Jersey City, and Robert H. McCarter, of Newark, for plaintiff in error. John P. Drewen, Jr., of Jersey City, for the State.

PARKER, J. We concur in the conclusions and reasoning of the Supreme Court, and it would be unnecessary to add anything in affirming the judgment, except for a point not specially mentioned in the opinion below, viz. the language of the trial court in instructing the jury on the subject of defendant's presence at the scene of the crime, and the refusal to charge a request bearing on that subject.

The case was of the "green goods" type, and the state's evidence tended to show several prior communications and meetings between the complaining witness and his companion and the defendant, culminating in an assault and robbery from the person. The defendant denied that he ever saw or spoke to the complainants until after his arrest, when he was confronted with them in a magistrate's court—a denial which, of course, covered a claim of absence from the scene of the robbery. The court was asked to charge:

"If the identification of the defendant by Smith and Bokin is inconclusive, and leaves your mind in a state of doubt as to his participation, you must find for the defendant."

This was refused, and properly so, as it called for evidence that was conclusive against defendant, to the exclusion, not merely of reasonable doubt, but of any doubt whatever. The court charged adequately on the subject of reasonable doubt, but, in discussing the defendant's argumentative claim that he had never even seen the complaining witnesses, said:

"You will have observed in this case that these two men who have testified here, and the wife of one of them has testified with some particularity as to the visits of this defendant to Pennsylvania; that is to say, one of the witnesses and his wife testified to the fact of such visits, and of their inability to distinguish him from other people; that the complaining witness and his associate who is here afterward saw this defendant in New York, and on another occasion saw him at or about Duke's house in the city of Hoboken, and then or at some future time he went to the town of Union in this county. The defendant, you will recall, denies that he ever saw these men, or the wife of one of these men. If the defendant's story is true, and you are persuaded he never saw them, or had anything to do with them, of course jour verdict should be not guilty."

It is the last sentence of this quotation that is complained of, but the instruction has been reproduced entire, in order to show the context. Counsel for plaintiff in error urge that the instructions place on their client the burden of proving bis absence from the scene of the robbery; but this, we think, is fallacious. The antithesis is between the story of the complainants that they had met the defendant at several times and places, including that of the robbery, and that of the defendant that he had never met them anywhere or at any time. Certainly the defendant should be acquitted if this general claim is true, and in this respect there was no error. Nor was any burden imposed on the defendant by...