State v. Merkle

• Decision Date: 18 November 1912
• Citation: 83 N.J.L. 677,85 A. 330
• Parties: STATE v. MERKLE.
• Court: New Jersey Supreme Court

85 A. 330

83 N.J.L. 677

STATE

v. MERKLE.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1912.

Dissenting Opinion, Dec. 3, 1912.

(Syllabus by the Court.)

Error to Supreme Court

Sylvester Merkle was convicted of soliciting a bribe for his official vote (83 Atl. 186), and brings error. Reversed.

Joseph M. Noonan, of Jersey City, for plaintiff in error.

Pierre P. Garven, of Jersey City, for the State.

GARRISON, J. The judgment of the Supreme Court affirming the judgment of the Hudson quarter sessions convicting Sylvester Merkle of soliciting a bribe for his official vote is before us on "a writ of error bringing up the bill of exceptions as signed and sealed in the cause." Revised Criminal Procedure Act 1898 (P. L. 1898, p. 915) § 136. "The entire record of the proceedings had upon the trial" is also returned under the provision of the statute cited. The error with which this opinion deals is presented by an assignment of error based upon the bill of exceptions so signed and sealed.

Merkle was a member of the board of education of the town of West New York. The principal of one of the public schools in that town was Warren F. Hannis, whose reappointment was to come before the board on May 17, 1909. Hannis testified at the trial that on the day before this meeting Merkle came to his house and told him that a combination of certain members of the board had been formed, one of whom was Von Scholtzke, and that Von Scholtzke said that he (Hannis) could have his job for $100; that he did not pay the money and failed to get his reappointment at the meeting held on the following evening at which Merkle voted against his reappointment. To rebut the inference that he had voted against Hannis' reappointment because the money said to have been solicited had not been paid, Merkle, after denying Hannis' charge in toto, sought to show that his vote against Hannis was due to an official report that showed Hannis' unfitness for the place. Specifically what Merkle sought to show was that, pursuant to an order of the board of education, Mr. Bahrheidt, the supervising principal, had, for the information of the members of the board in the performance of their official duties, prepared a report showing the ratings of the various schools under his jurisdiction, and that, because of the rating of Hannis' school as shown by this official report, he (Merkle) had voted against his reappointment. Of the relevancy of this line of proof and of its cogency if such official report was proved and produced there can be no sort of question.

Two witnesses were called by the defendant in his effort to introduce this report in evidence. One was Mr. Bahrhei3t himself, who testified that he had the report with him. The other was a Mr. Gompert, who testified that he had a copy of the report in his pocket. This is what happened at the trial: The witness Bahrheidt, on being asked, "Have you the rating with you?" replied, "I have." "Q. Will you produce it?" to which the objection interposed by the prosecutor was, "It is incompetent, irrelevant, and immaterial." "The Court: Objection sustained." To which ruling a bill of exceptions was signed and sealed. The witness Gompert was asked: "Q. Where is that rating? A. I have it in my pocket. Q. From whom did you get it? A. From Mr. Bahrheidt." Objection: "It is immaterial, irrelevant, and incompetent. The Court: Objection sustained." To which ruling a bill of exceptions was signed and sealed.

Nothing can be clearer than that the rulings displayed by this bill of exceptions were erroneous and injurious to the plaintiff in error.

The Supreme Court before whom the errors thus assigned were argued practically conceded that the plaintiff in error had been erroneously deprived of testimony that was "manifestly," to use the words of the court, "both competent and relevant upon the question of the motive that induced Merkle to vote against the reappointment of Hannis."

Notwithstanding this conclusion, the court below decided that the error thus manifestly erroneous did not justify a reversal of the judgment. This decision is placed upon two grounds in neither of which are we able to concur.

This is what the court said in its opinion: "It is difficult to understand upon what ground this line of testimony was excluded, for manifestly such testimony was both competent and relevant upon the question of the motive which induced Merkle to vote against the reappointment of Hannis. But the mere fact that the rulings complained of were erroneous will not justify a reversal of the conviction before us. The defendant, instead of seeking a review upon a strict bill of exceptions, has seen fit to avail himself of the beneficent provisions of section 136 of the Criminal Procedure Act, which permits a defendant to bring up the whole record of the proceedings had upon the trial, and subject to the scrutiny of a court of review all rulings of the trial court either admitting or rejecting testimony whether objection was made thereto or not, every denial by the trial court of any matter which was a matter of discretion, and the whole charge of the jury whether a bill of exceptions was signed and sealed thereto, or not. Having resorted to this method of review, the defendant is, by the express words of the statute, entitled to a reversal of the judgment against him only when 'it appears' that he has 'suffered manifest wrong or injury' by some of such rulings on evidence, or denials of matter of discretion, or by something contained in the charge. The question, therefore, which these causes of reversal present for determination, is not whether the rulings on evidence complained of were erroneous, but whether it appears, from an examination of the whole proceedings had at the trial, that the defendant suffered manifest wrong or injury thereby. An examination of these proceedings shows that Hannis himself, on the witness stand, admitted that his rating as a principal was 'very poor,' and that the defendant testified that the rating of Hannis was 'the poorest rating' of any principal in the town. No attempt was made on the part of the prosecution to controvert this statement, and it went to the jury practically an admitted fact. The excluded evidence was therefore merely cumulative, and it is not perceived how it can be logically said that the defendant has suffered manifest wrong or injury by the refusal to admit testimony which merely supports the existence of an uncontroverted fact that has been proved by other evidence in the case."

This opinion, which was filed April 10, 1912, followed the opinion of the same court in the case of State v. Brown (Sup.) 82 Atl. 302, filed February 27, 1912, in which, speaking of the review specially provided by the 130th section of the Criminal Procedure Act, it was said: "When a person convicted of crime takes advantage of the liberal review provided by that section, he relinquishes any advantage which might come to him from mistakes made at the trial unless he can show that he has suffered manifest wrong or injury by such mistakes."

If, as may be gathered from the opinion, State v. Brown came up for consideration solely under the 136th section, the language quoted, although broader than such a case required, was, as applied to such a case, a mere paraphrase of the section under which the case came up; if it was applied to errors regularly assigned upon bills of exceptions sealed at the trial, it was a distinct novelty.

In the present case, which appears to be the first in which it has been done, the effect of applying the rule, formulated in State v. Brown, to errors assigned upon bills of exceptions, is to construe the review provided by the 136th section as superseding the review upon assignments of error of exceptions taken at the trial which by force of such construction are, when the entire record is brought up, not only negligible, but entirely

nugatory. For if a plaintiff in error, by returning the entire record "with the writ of error bringing up the bill of exceptions as signed and sealed at the trial" (section 136), ipso facto relinquishes all advantage of such bill of exceptions, the review accorded him is precisely as if such exceptions had not been taken, or, if taken, had not been brought up with the writ.

Under this construction of the statute, plaintiffs in error perforin an entirely futile act when they bring up their "bill of exceptions as signed and sealed in the cause," since the only review to which they are entitled in such ease is one in which such bills of exceptions are treated as if they did not exist.

Such a construction of this much used statute is strangely at variance with the practice that has universally obtained in this court and in the court below, in each of which, ever since the enactment of the revised Criminal Procedure Act of 1898, it has been the constant practice of the bar to bring up with the entire record their bill of exceptions as specifically provided by the 136th section and to argue and rely upon the errors assigned thereon; and it has been the equally constant practice of this court to consider and adjudicate the errors so assigned and argued. Indeed, in State v. Miller, 71 N. J. Law, 527, 60 Atl. 202, where the entire record was returned, this court not only received and adjudicated errors assigned on a bill of exceptions, but would hear nothing else. "In the case before us now," said Chancellor Magie, "upon the objection of the prosecutor, we feel bound to declare that plaintiff in error cannot require us to review any matters except those presented by bills of exception and the assignments of error thereon." In State v. Callahan, 77 N. J. Law, 685, 73 Atl. 235, the point expressly decided by this court was presented by error assigned on a bill of exceptions, although the entire record was brought up from the Supreme Court, where both "assignments and causes" were examined. Id., 76 N. J. Law, 426, 429, 69 Atl. 957, 958.

The...