State v. Mor

• Decision Date: 18 February 1914
• Citation: 85 N.J.L. 558,89 A. 755
• Parties: STATE v. MOR.
• Court: New Jersey Supreme Court

89 A. 755

85 N.J.L. 558

STATE

v. MOR.

Supreme Court of New Jersey.

Feb. 18, 1914.

Error to Court of Quarter Sessions, Essex County.

Kraus Mor was convicted of selling short weight of coal with intent to defraud, and he brings error. Reversed, and venire de novo awarded.

Argued June term, 1913, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Frank E. Bradner, of Newark, for plaintiff in error.

Louis Hood, Prosecutor of the Pleas, of Newark, for the State.

KALISCH, J. The plaintiff in error was tried and convicted in the Essex quarter sessions under an Indictment, containing two counts, which in substance charged that he did unlawfully sell to one W. D. M. a certain quantity of coal, of the weight of 1,785 pounds, as being of the weight of 2,000 pounds, he (the said Kraus Mor) then and there well knowing said quantity of coal to weigh 1,785 pounds only, with intent to defraud the said W. D. M., and to the injury of the said W. D. M., contrary, etc.

The indictment was founded upon section 26 of an act entitled "An act to establish a uniform standard of weights and measures in this state, to establish a department of weights and measures, and to provide penalties for the use of other than standard or legal weights and measures." P. L. 1911, p. 414.

Section 26 provides: "Any person who injures or defrauds another by using, or causes to be used, with knowledge that the same is false, a false weight, measure or other apparatus, for determining the quantity of any commodity, or article of merchandise, or sells or exposes for sale less than the quantity he represents, is guilty of a misdemeanor."

We are asked by the plaintiff in error to pass upon the legal sufficiency of the indictment and upon the constitutionality of the section upon which the indictment was based, though the record discloses neither an assignment of error nor specification of cause for reversal that raises either question, unless they are raised, as contended for by the plaintiff in error, by the prayer for relief in the assignment of errors, which is: "That the judgment and sentence, by reason of the aforesaid errors and all other errors appearing in the record and proceedings aforesaid and in the giving of judgment and passing of sentence as aforesaid, be reversed, annulled, and held for nothing," etc. But this is manifestly not so. The prayer is not equivalent to a general assignment of error which in express terms declares that there is manifest error in the record and proceedings in that it appears by the record aforesaid that the said judgment aforesaid is given for the state of New Jersey, and against the said A. B., when by the laws of the land and of the said state of New Jersey the judgment aforesaid ought to have been given for the said A. B., etc.

And the settled practice was and is to follow this general assignment by pointing out specifically the errors in the record and proceedings. In Donnelly v. State, 26 N. J. Law, Green, C. J., on page 512, said: "So in the assignment the grounds of error should be specified. The adverse counsel are entitled to know what the exception is, and the court are not required to search for errors not definitely pointed out."

But even if there had been a proper assignment, based upon the insufficiency of the indictment, in that it failed to set out any criminal offense, it could not have availed the defendant, on the record before us. For it appears that no motion was made in the court below by counsel for plaintiff in error to quash the indictment for that or any other reason, before the jury was sworn. The failure to have done this precludes the plaintiff in error from raising any objections to the legal sufficiency of the indictment. 2 C. S. § 44, p. 1834; Mead v. State, 53 N. J. Law, 602, 23 Atl. 264; State v. Sharkey, 73 N. J. Law, 491, 63 Atl. 866.

We are now brought to a consideration of the objection made by the plaintiff in error to the admission of testimony introduced by the state tending to establish that the plaintiff in error, near to the time when he made the sale to Morris, made other sales of coal by the same scales to various persons, which were less than the legal weight called for. We think this objection was properly overruled. For such testimony was competent for a single purpose only, and that was to negative that the sale of short weight made to Morris was the result of accident or mistake.

Lastly the plaintiff in error complains that he was prejudiced and injured in maintaining his defense on the merits, because Frank Osmun and Horace B. Holcombe, witnesses for the state and recalled by it, on rebuttal, were permitted by the court to be asked and to answer on their direct examination, by the prosecutor of the pleas, against objections interposed by defendant's counsel, the following questions: "Did he [referring to one Healey, a witness for the defense] call to you from the wagon and say this: 'Why don't you want to see my ticket?' 'Why don't you test me now?' 'I have got a full load on to-day.' Did...