State v. Miller

• Citation: 71 N.J.L. 527,60 A. 202
• Parties: STATE v. MILLER.
• Decision Date: 06 March 1905
• Court: United States State Supreme Court (New Jersey)

60 A. 202

71 N.J.L. 527

STATE

v. MILLER.

Court of Errors and Appeals of New Jersey.

March 6, 1905.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Passaic County.

Joseph Miller was convicted of murder, and brings error. Affirmed.

Isadore Klenert, for plaintiff in error. Eugene Emley, for the State.

MAGIE, Ch. This writ of error brings up for review the conviction of plaintiff in error of the crime of murder in the first degree. The plaintiff in error has procured the return, with the writ of error, of the entire record of the proceedings at the trial, in the manner permitted by section 136 of the criminal procedure act of 1898 (P. L. 1898, p. 915). There were also returned therewith bills of exceptions. Plaintiff in error has assigned errors, of which some are founded on exceptions shown in said bills, and others are not so founded. He has not filed any specification of causes for relief or reversal, nor has he made it appear that he has served any such specification upon the Attorney General. or the prosecutor of the pleas, as he is required to do by section 137 of the act above cited. The prosecutor of the pleas, upon the argument, objected to our consideration of any questions presented upon the record of the proceedings at the trial, under section 136, because no causes for the relief or reversal were specified or served as required by section 137, and he insisted that the plaintiff in error should be confined to his bills of exception and the assignments of error thereon as prescribed by the latter section.

In the case of State v. Young, 67 N. J. Eq. 223, 51 Atl. 939, this court had before it a similar judgment of conviction, brought up by a writ of error, with bills of exception and the entire record of the proceedings at the trial. The plaintiff in error had assigned errors, but bad failed to file or serve specifications. The omission was pointed out, with a quære whether, under such circumstances, the court was required to review any matters except such as were presented by the assignments of error; but because no objection had been interposed to the consideration of the whole matter, and the question suggested had not been argued, and because of the importance of the case to the plaintiff in error, we deemed it best to consider his case in all its aspects. In the case before us now, upon the objection of the prosecutor of the pleas, we feel bound to declare that plaintiff in error cannot require us to review any matters except those presented by the bills of exception and the assignments of error thereon. To obtain a review of other matters under section 136, the plaintiff in error must specify the causes relied on, and serve such specifications upon the representative of the state, as required by section 137. State v. Shutts, 69 N. J. Law, 206, 54 Atl. 235.

The first assignment of error is founded on an exception to the admission of a question addressed to one Lewis, who had, without objection, testified that he was a licensed preacher of the African M. E. Church, having charge of the services of the church in Pompton, near the scene of the homicide: that he had been holding extra services every night for nearly three weeks previous to the time of the homicide; that plaintiff in error had been attending these services quite regularly, but that the witness had noticed his absence from the meetings. The question then put was, "How frequently was he absent?" Objection was interposed to the question as immaterial and irrelevant. It was admitted, and this exception allowed. We think the question was properly admitted. In the absence of direct proof of the presence of plaintiff in error at the scene of the homicide (of which there was none), it was material for the state to show his whereabouts at the time, at least to the extent of justifying an inference that he might have been at the place. There was proof that plaintiff in error left the house of his employer about 9 o'clock of the night in question, apparently to go to the barn, to a room in which he slept, and that the house at which the homicide was committed at some time in the early part of that night was not far distant. Proof that the plaintiff in error was absent on that night from the services which he had been attending with regularity was competent in the same line. The question was adapted to elicit that fact, and the answer to the question disclosed that the accused was absent on the night in question from his accustomed place. This, if believed, excluded any inference that when he had left his employer's house he had gone to the night meeting.

The second assignment of error is directed to the admission of evidence from the county physician, respecting his examination of the body of the accused while in the jail. The exception on which the assignment is said to be founded is thus shown in the bill of exceptions: The witness had testified that he had noticed particular marks upon the person of the accused, and he was then asked "to describe that." He answered that he went to the Jail to examine the body of the accused. Thereupon counsel for the plaintiff in error interposed an objection to the question. It was overruled, and the exception allowed. It will be observed that the objection was not made when the question was asked, but only after the witness had commenced his answer thereto, and then no reason was presented why the question was claimed to be inadmissible. But it is argued here that the witness, by his answer so far as given when the objection was interposed, had clearly Indicated that the purpose of the question was to elicit the result of witness' observation obtained by an examination of the body of plaintiff in error while in the jail, and that, if a question with that purpose was inadmissible, the objection must have been deemed by the trial judge to have been made upon that ground, and so to be reviewable.

It is further argued that the next answer of the witness, after the objection was overruled, should be considered, and that he should determine the admissibility of the question in the light of the purpose disclosed by the commenced and by the subsequent answer. The claim seems to be that, upon the objection, the prosecutor should have opened the purpose for which the evidence was offered, and that, had he done so, the objection to the question would have been shown to be tenable. Assuming, without deciding, that the question thus argued is brought within our consideration, we have given it attention. The witness, in response to the question, testified that he had the plaintiff in error removed to a room in the upper part of the jail, and divested of his clothes, and he there upon made an examination of his person, with the result that he discovered two superficial wounds, one on the back of each hand which wounds he described. The argument is that by this course of procedure plaintiff in error was compelled, in a criminal case, to be a witness against himself, in violation of one clause of the fifth amendment to the Constitution of the United States. Some of the provisions of that amendment have been adopted in the Constitution of this state. The particular provision supposed to be infringed by this course of procedure has not been included in our Constitution. It has been frequently held that the first ten amendments to the Constitution...