State v. Raymond

• Decision Date: 19 February 1891
• Citation: 53 N.J.L. 260,21 A. 328
• Parties: STATE v. RAYMOND.
• Court: New Jersey Supreme Court

21 A. 328

53 N.J.L. 260

STATE

v. RAYMOND.

Supreme Court of New Jersey.

Feb. 19, 1891.

(Syllabus by the Court.)

Error to court of quarter sessions, Middlesex county; Stewart, Judge.

Argued November term, 1890, before Beasley, C. J., and Magie and Dixon, JJ.

A. H. Strong and C. Parker, for plaintiff in error.

Adrain & Rice, for the State.

DIXON, J. The plaintiff in error was indicted for setting fire to a dwelling-house in Middlesex county on December 14, 1888, and, on trial in the Middlesex general quarter sessions, was convicted. The record of conviction is now before this court, with assignments of error based upon exceptions taken at the trial.

The first exception to be noticed relates to a statement made to the jury by the presiding judge under these circumstances: The trial had occupied several days, and in its progress the evidence had indicated that the prisoner's defense might be strengthened by the testimony of one Ellery H. Bouton, if he were produced. On the prisoner's cross-examination he admitted that he had not tried to secure Bouton's attendance, and gave as an excuse the fact that he did not know his whereabouts, and was confined in jail. At the close of his cross-examination, the following colloquy took place between the prisoner and the presiding judge: "Judge. Have you or is there a man who goes to New York every day for you during this trial? Prisoner. No, sir; not expressly for me. He goes every day. I have had him deliver some letters for me, and attend to some matters. Judge. A black-eyed man? Prisoner. Yes, sir; I know who you have reference to. Judge. You said the other day on the stand that you did not have any facilities for acquiring witnesses or evidence, or anything of that kind, and 1 think I ought to state to the jury that this man accosted me on Saturday night, on the train coming from New York, and told me that he was a friend of the defendant, and went to New York every day for him. I don't know anything further than that. I thought it was due to the defendant to state the fact to him." To this statement by the judge of information received by him the prisoner excepted, on the ground that the same was not legal evidence, nor proper to be stated to the jury. The exception was well taken. The jury lawfully may draw unfavorable inferences against a party who can, but does not, produce a witness whose testimony would aid his case, if his case were just; and, to prevent such an inference for the non-production of Bouton, the prisoner was entitled to the benefit of his excuse of inability, unless that excuse was shown by legal evidence to be ill founded. The statement of the judge tended to show the excuse to be ill founded, and that statement was expressly presented to the jury by the judge's remark that he thought he ought to state it to the jury. The statement, however, was not legal evidence. It was delivered to the jury without the sanction of a witness' oath, and, in substance, it was hearsay. The statement went further than the prisoner's admission, for it indicated that the man who accosted the judge was going to New York every day for the prisoner out of friendship, while the admission indicated only an occasional employment in the way of business. The difference, as a means of discovering and producing Bouton, was material.

The next exception to be noticed is for the refusal of the court to permit the jury, when retiring to consider their verdict, to take with them the exhibits in the cause. The common-law rule on this subject seems to have been that expressed in Vicary v. Farthing, Cro. Eliz. 411, "that writings or books which are not under seal cannot be delivered to the jurors without the assent of both parties: but, being delivered by the court without the assent of the parties, neither of the parties can avoid the verdict, in regard they were given in evidence before." This implies that with respect to writings under seal the assent of parties was not requisite. This distinction between these two classes of instruments was abolished in New Jersey by section 20 of the act relating to juries and verdicts, passed November 10, 1797, (Pat. Laws, p. 261,) which enacted that papers read in evidence, though not under seal, might be carried from the bar by the jury. This section remained under the same title (Nix. Dig., 4th Ed., p. 453) until the Revision of 1874, when it was transferred to the practice act, § 182. Such transfer did not affect its previous signification, the new title being broad enough to cover it. Knight v. Freeholders, 49 N. J. Law, 485, 12 Atl. Rep. 625. The common law and statutory rule thus established was evidently designed for the benefit of litigants, and can bear no other reasonable meaning than to confer on each party the right to have the jury take into their private deliberations the papers read in evidence. Such a course is dictated by the principle which entitles the parties to have their controversy decided according to the testimony, for an actual reference to such papers by the jury keeps the testimony before their minds more clearly than could the mere memory of their contents from a reading during the trial. When, as in the present case, the genuineness of handwriting, or some inference to be gathered from a careful scrutiny of the document, is to be passed upon by the jury, the wisdom of the course is still more manifest. No objection against it is suggested. It is, moreover, in consonance with the common, I think the uniform, practice of our courts. The withholding of...