State v. Overton

• Decision Date: 09 October 1913
• Citation: 85 N.J.L. 287,88 A. 689
• Parties: STATE v. OVERTON.
• Court: New Jersey Supreme Court

88 A. 689

85 N.J.L. 287

STATE

v. OVERTON.

Court of Errors and Appeals of New Jersey.

Oct. 9, 1913.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Essex County.

William Overton was convicted of murder, and brings error. Affirmed.

Frank M. McDermit, of Newark, for plaintiff in error.

Andrew Van Blarcom, Asst. Prosecutor of the Pleas, of Newark (Louis Hood, of Newark, on the brief), for the State.

PARKER, J. The plaintiff in error was convicted of murder in the first degree. It appeared by the evidence that, as the result of bastardy proceedings instituted on the complaint of Carrie B. Henderson, he had married the woman, and after the birth of the child had killed the mother and her infant by tying them separately with a clothesline to a bed around the body and throat, and causing death by strangulation. The defense was insanity. The entire case is sent up pursuant to section 136 of the Criminal Procedure Act (2 Comp. St. p. 1863), and we take up the grounds of reversal argued in the order in which they were presented.

1. The first point made is based on reasons 1 and 2, which are as follows: (1) That the court erred in denying the motion of counsel for plaintiff in error, because the prosecutor of the pleas had made a statement in open court the day previous to the trial of this cause when one Antonio Fiore was to be tried for murder; that he, the prosecutor, asked for an adjournment of that case, because he, the prosecutor, had no confidence in the jury that had been returned to try that cause, and that jury was the same jury that was returned to try the indictment found against plaintiff in error, and therefore such statement was prejudicial to the rights of the plaintiff in error. (2) That the court erred in not allowing counsel for the defense to submit testimony to show that the prosecutor had made such statement in order to support said motion made by counsel.

This motion was made before the trial jury was drawn. An examination of the record shows that it does not support these reasons, for there was no proof, and no offer to prove, that the prosecutor had made any such statement; the offer was to show that a report of his having done so had appeared in a newspaper. In fact it was asserted by the prosecutor without contradiction that the two special panels were different, though taken from the same general panel. The trial jury had not been drawn, and the "jury" referred to by counsel evidently was the special list served on defendant pursuant to statute from which the trial jury was to be drawn. The argument of counsel was "that such a statement published in the newspaper, reflecting upon the competence of a jury to try a cause, is such error in a murder case that it is my duty to take advantage of it" Of course, a court cannot be put in error by the mere publishing of newspaper reports. While it may be that in cases of public excitement the possible effect of newspaper articles upon the jury may justify the court in its discretion in adjourning a trial and summoning another jury, it has never in this state been a ground of challenge to a juror that he had read newspaper reports relating to the case, so long as he declares his ability to consider the case on the evidence. Wilson v. State, 60 N. J. Law, 171, 37 Atl. 951, 38 Atl. 428; Moschell v. State, 53 N. J. Law, 493, 22 Atl. 50. If not, there was certainly no legal ground for requiring the court to grant a continuance, or to discharge the special panel from which the trial jury was to be selected, and consequently no error in the denial of the motion.

2. The second point is that the witness Rooney should not have been allowed to testify in relation to the bastardy proceedings in the First criminal court of Newark, of which he was clerk, the record being the best evidence; that the papers offered and admitted as the record were not properly proved as such; that up to the offer of this record no ill feeling between defendant and the woman had been shown; that the complainant in the bastardy proceeding was not identified with the murdered woman; and that the criminal court docket showed an acquittal as well as a conviction.

The identity of the dead woman was established by evidence of the marriage in the presence of the clerk, following the conviction, and other evidence in the case; the contradictory statement in the docket ("Defendant tried by Judge Simon Hahn, and acquitted, convicted, and order made for $2.00 per week, and bond fixed at $500") is explained by the fact that the pages of the docket were printed forms containing both words, one to be erased according to circumstances. That there was a conviction was plain from the entry as to the bond and order of filiation. Assuming that the police court was a court of record (see 3 C. S. 4000, pl. 113; Id. 3991, 3993, pi. 78, 79, 85), the complete record, so far as there was any record, was produced and authenticated by the testimony of the clerk. It consisted of the complaint, warrant, order of filiation, bond for appearance, and the docket entries. He gave no testimony on direct examination that was not either as a foundation for the admission of these papers in evidence, or by way of identification of the defendant and the woman, and with relation to the incarceration of the defendant. The proceedings were, of course, offered by the state to show motive, and ill feeling might well be inferred from the fact that the defendant, to escape imprisonment for failing to furnish a bond for support, had found himself compelled to marry the woman. There was no error here.

3. The next point made is "that the court erred in allowing witness for the state John Eckerlein to testify, over the objection of counsel for the defense, to statements made by the defendant prior to the admission of the alleged crime of murder, and as a matter of fact prior to the arrest and conviction on the bastardy charge, because same were too remote, and not being part of the res gestæ." The statement testified to is that he said to Eckerlein, some seven or eight months before the murder, at the time of his arrest in the bastardy proceeding, "I will never marry the girl." Counsel maintain that evidence of statements indicating bad feeling, especially when made some time previous to the commission of the crime, was incompetent. The rule is just the other way. In State v. Rosa, 72 N. J. Law, 462, 62 Atl. 695, evidence was received and held competent that accused, some three weeks before the homicide, had said he had a grudge against two unnamed countrymen of his, and was going to kill them. In State v. Schuyler, 75 N. J. Law, 487, 68 Atl. 56, the fact of an altercation between accused and deceased, as long as ten years before the homicide, was held admissible; the remoteness of the occurrence going solely to the weight of the evidence. Such facts go to the question of motive, and, as we have already observed, the prosecution for bastardy and occurrences thereat were relevant and competent. What defendant said at the time of his arrest falls within the same class of evidence. The cases are collected in 1 Wigmore, Ev. § 397.

4. What has just been said applies also to the questions now complained of as allowed on cross-examination of the defendant, viz.: "When you were arrested, and she complained about you getting her in trouble, you told the police officer you would never marry her; do you remember that?" "When she made this charge against you, that you were the father of this baby that she was going to have, you denied it in court, didn't you?" "Before you were convicted and placed under a $500 bond, didn't you say that it wasn't your child—you were not responsible for her condition?"

It is further objected that, the bastardy proceeding being res judicata, the state could not show by parol proof what testimony was given thereat; the record being the best evidence. We know of no such rule. Of course, there was no "record" of the testimony, and, where there is even a written transcript of it, a witness may be, and witnesses constantly are, asked on cross-examination, particularly for purposes of impeachment, whether they did not testify previously in a certain way. In this case it was a party, and the state was entitled to anything that he said that would be relevant and within the limits of fair cross-examination.

5. The next point relates to comments of the trial judge on the evidence. Three excerpts from the charge are attacked, and for a proper understanding of them it is advisable to quote the portion of the charge in which they occur, so as to...