State v. Napolitano
| Citation | 113 A. 237 |
| Decision Date | 28 February 1921 |
| Docket Number | No. 59.,59. |
| Parties | STATE v. NAPOLITANO. |
| Court | United States State Supreme Court (New Jersey) |
Appeal from Supreme Court.
Gaetano Napolitano was convicted of killing and stealing two heifers, the property of another, and he brought error to the Supreme Court, which affirmed, and he brings error. Judgment of the Supreme Court affirmed.
On appeal from the Supreme Court in which the following per curiam was filed:
The writ in this case brings up for review the conviction of Napolitano on two counts of an indictment, one of which charges him with killing two heifers, the property of one Goldblatt, with intent to steal the carcasses, and the other charging him with stealing the heifers. Five grounds of reversal have been argued before us, three of which are directed at the charge of the court to the jury; the other two attacking rulings of the court upon the admission of evidence.
Taking up the criticisms upon the charge to the jury in the order in which they were argued by counsel:
(1) "You should consider also the evidence in regard to * * * sale of two or three hides the next morning by the defendant." The contention is that this part of the instruction contained an injurious misstatement of fact, for the reason that the uncontradicted testimony showed that these hides were sold by the defendant four days after the alleged killing of the heifers, and not the day after. It is true that what the court said upon this matter was contrary to the fact as proved, but it does not seem to us that the time of the sale was material. Counsel asserts that it was, but gives no reason in support of this assertion. The case comes up under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), the defendant relying entirely upon the causes of reversal filed under the authority of the following section. Under section 136, in order to justify a reversal because of any mistake or error appearing in the charge of the court, it must be shown that the plaintiff in error suffered manifest wrong or injury. We are unable to see that any such result followed from the misstatement of fact as to the date of the sale of the hides, and therefore decline to reverse the conviction upon this ground.
(2) The next contention is that the court improperly charged the, jury with reference to defendant's alibi. No general exception was taken to the charge. The only specific exception under which this contention can possibly be justified is the following: "I take a further exception on the ground that your honor charged the jury that if they believe that the defendant was there and stole the cattle they should find him guilty, on the ground that in order to find the defendant guilty they must be convinced of the...
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State v. Beard
...by the State should be received after the defense has closed is likewise to be determined by the presiding judge. State v. Napolitano, 95 N.J.L. 546, 113 A. 237 (E. & A.1921); State v. Mohr, 99 N.J.L. 124, 122 A. 837 (E. & A.1923); State v. Landecker, 100 N.J.L. 195, 126 A. 408 (Sup.Ct.1924......
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...affirmed 124 N.J.L. 451, 12 A.2d 677 (E. & A.1940); State v. Hubschman, 133 N.J.L. 520, 45 A.2d 316 (Sup.Ct.1946); State v. Napolitano, 95 N.J.L. 546, 113 A. 237 (E. & A.1921); 23 C.J.S., Criminal Law, §§ 1055, 1056(a), 1056(b), pp. 462, 464, 465; Maupin v. United States, 225 F.2d 680 (10 C......
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...which were not strictly rebuttal is also without substance. The order of trial is within the discretion of the court. State v. Napolitano, 95 N.J.Law, 546, 113 A. 237. Finally it is contended that there was error in following the procedure set forth in chapter 287 of the Laws of 1935, page ......