State v. Mosley

• Decision Date: 18 December 1925
• Citation: 131 A. 292
• Parties: STATE v. MOSLEY.
• Court: New Jersey Supreme Court

131 A. 292

STATE

v. MOSLEY.

Court of Errors and Appeals of New Jersey.

Dec. 18, 1925.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Essex County.

Andrew Mosley was convicted of murder in the first degree without recommendation, and he brings error. Affirmed.

William V. Azzoli, of Newark, for plaintiff in error.

John O. Bigelow, of Newark, Prosecutor of the Pleas, for the State.

WALKER, Ch. Andrew Mosley, the plaintiff in error, was convicted of murder in the first degree, in the Essex oyer and terminer, without recommendation, for the killing of Edward Tucker, and sentenced to be executed. He sued out a writ of error to this court, under section 136 of the Criminal Procedure Act (2 Comp. Stat. p. 1863).

The homicide took place on January 10, 1922, in a pool room in Newark operated by the deceased. The room was divided by a partition not extending its whole length, and not extending to the ceiling. There were present in the rooms, front and back—if they may be called rooms—Henry Williams, William Fleming, James Sully, William Smith, John N. Jones and Willy Fleming. Their testimony, although differing slightly as to the words used (one witness [Sully] saying he heard Mosley and Tucker arguing but could not tell exactly what words they used), was that Mosley asked Tucker for money, to which the latter replied that he did not owe him anything and did not have anything; whereupon Mosley said with an oath that he would have to get it, and Tucker made a vulgar and impossible retort, whereupon Mosley drew a revolver, Tucker threw up his hands, and Mosley shot; Tucker fell to the floor and shortly thereafter died; Mosley went out of the place, fled the state, lived at various places under an assumed name, and was arrested in Pottsville, Pa., more than three years after the homicide. Lee Edwards, a witness, testified that in another pool room on the morning of January 10, 1922, Mosley whom he knew, appeared, and in a conversation with a man standing near, whom witness did not know, said he was going to kill Tucker when he saw him. Mosley was the only witness sworn on his direct defense. He testified that he had just played a game of pool with some one in the Tucker pool room, and the latter came in and asked to see the gun he had to sell, and then he walked into the front room where he had left his coat, to take it out of the pocket, and in doing so the gun went off accidentally; he denied that he had had any altercation with Tucker about money or otherwise, never said in the presence of any one that he was going to kill Tucker, and did not remember seeing him throw up his hands; that there was no feeling between them that he knew of; they always got along well together. Several witnesses were called in rebuttal for the state; but gave unimportant evidence; and this was so as to other testimony given for the defendant in rebuttal.

Counsel for Mosley says in his brief:

"The facts in this case lead irresistibly to the conclusion that the defendant, Mosley, pulled out his gun in the heat of passion intending to do grave bodily harm to the deceased, Tucker, without justification and lacking the other elements of the highest degree, viz., premeditation, deliberation, and willfulness."

It may be assumed, therefore, that the defense has been shifted from accidental killing to murder committed in the heat of passion, without justification and with intent to do great bodily harm, but without premeditation, deliberation, and willfulness; in other words, to murder of the second degree. But this shifting of the defense has no controlling effect upon the questions before the court, and therefore is quite immaterial.

The first contention on behalf of the defendant is that the verdict is against the weight of the evidence. Clearly it is not, but, on the contrary, is entirely justified by the evidence, as the above recital of the testimony demonstrates. To justify a court in setting aside a verdict in a criminal case, under P. L. 1921, p. 951, on the ground that it is against the weight of the evidence, the verdict must so clearly appear that it is against the weight of the evidence as to give rise to the inference that it is the result of mistake, passion, prejudice, or partiality. State v. Karpowitz, 98 N. J. Law, 546, 120 A. 40. And surely this verdict is not in that category. This contention must be overruled.

It is argued for Mosley that there was error concerning the admission and rejection of certain testimony of sundry witnesses; but as to the court's ruling on such of it as was excepted or objected to, no manifest wrong or injury resulted to the defendant; and as to the rest there was no exception or objection, and therefore nothing to review.

Now, the object of an exception is to challenge the correctness of the ruling or decision of the trial court promptly, when made, to the end that such ruling or decision may be corrected by the court itself, if deemed erroneous, and to lay a foundation for review, if necessary, by the appropriate appellate tribunal. It is the general rule of law that rulings or decisions which affect substantial rights, and on which error is predicated, will not be revised unless an appropriate exception to the alleged error was reserved. 3 C. J. pp. 894, 895. And error which occurs at the trial of a cause cannot be made a ground of reversal unless it is embraced in the bill of exceptions. Potts v. Evans, 58 N. J. Law, 384, 34 A. 4; Sherwin v. Sternberg, 77 N. J. Law, 117, 118, 71 A. 117. These are authorities in civil causes, but the rules of law are generally alike in civil and criminal cases. State v. Murphy, 87 N. J. Law, 515, 94 A. 640. And in respect to the admission or rejection of evidence and exception thereupon, they are alike except as modified by statute or rule of court. While the Practice Act of 1912. § 25 (P. L. p. 382) abolished bills of exceptions in civil cases, it did not abrogate the general rule that no decision relating to the reception or rejection of evidence will be reviewed unless the record discloses that an objection to such, ruling was duly made or such ruling otherwise challenged at the time it was made. Kargman v. Carlo, 85 N. J. Law, 632, 90 A. 292. But, in criminal cases, the old rule of requiring exceptions prevails, except on review of a conviction under Criminal Procedure Act (2 Comp. Stat. p. 1863), § 136; provided the plaintiff in error shall specify the causes in the record relied upon for relief or reversal under section 137 (supra, p. 1866), having brought up the entire record of the proceedings had upon the trial with the bill of exceptions under section 136, which provides that on review of the entire record of the proceedings had upon the trial, if it appear that the plaintiff in error suffered manifest wrong or injury, either in the admission or rejection of testimony, whether objection was made thereto or not, the appellate court shall remedy such wrong or injury and give judgment accordingly. This was construed in State v. Hummer, 81 N. J. Law, 430, 67 A. 294, to mean that the phrase "admission or rejection of testimony" imports judicial action; that is, that the action of the court in admitting or rejecting testimony may be reviewed without objection being made to such ruling. As is well said in the opinion by Mr. Justice Garrison, speaking for this court in the case, at page 432 (67 A. 294):

"No one but the trial court can reject testimony, hence as 'rejection of testimony' must imply action by the court, the same sort of meaning is by the familiar rule to be given to the word 'admission' as an associated term of precisely the same nature used in exactly the same context."

So, the words "admission or rejection of testimony" mean the ruling of the court thereupon, either admitting or rejecting it, which ruling the defendant is entitled to review without excepting or rejecting to the adverse ruling.

There are three classes of cases relating to the admission or rejection of testimony under Criminal Procedure Act, § 136, in only one of which defendant can have a review. The first is that class in which questions are asked and answered, with no objection made by the defense, and it is afterwards argued on writ of error that the questions were incompetent and the evidence illegal. In this class it is held that there will be no reversal even under the Criminal Procedure Act, § 136, supra, because no judicial action is involved. In State v. Mohr, 127 A. 348, it was held by the Supreme Court that the rule that a judgment may be reversed for an erroneous admission or rejection of evidence, where the ruling is not objected to, applies only where judicial action has been taken upon the question presented and the testimony has been excluded or admitted over the objection thus taken; but where the court takes no action upon the question there is neither a judicial reception or rejection of the evidence. Affirmed (N. J. Err. & App.) 127 A. 349.

The second class is where the defendant permits testimony to go in without objection to the question, but later moves to strike it out. In this class it is held that the objection made on the motion to strike comes too late. State v. Dragone, 99 N. J. Law, 144, 122 A. 878.

The third class is where testimony offered by the state is admitted over objection by the defense, or where testimony offered by the defense is excluded on the objection of the prosecutor. In either event there is a ruling upon the admission or rejection of the testimony, which is reviewable without exception or objection to such ruling; and, if it works manifest wrong or injury to the defendant, it is judicial error which will lead to reversal. Criminal Procedure Act, § 136, supra. See, also, State v. Hummer, supra.

This view requires consideration of testimony admitted or rejected, coming within the purview of the statute under the rule above laid down, so far as the subject was argued on behalf of Mosley. A question...