State v. Rogers
| Decision Date | 15 May 1939 |
| Docket Number | No. 1.,1. |
| Citation | 122 N.J.L. 490,6 A.2d 207 |
| Parties | STATE v. ROGERS. |
| Court | New Jersey Supreme Court |
Error to Court of Special Sessions, Hudson County; Thomas Herbert Brown, Judge.
George W. Rogers was convicted of causing an explosion of a bomb with intent unlawfully to injure the person of another, and he brings error.
Affirmed.
Argued May term 1939, before BROGAN, C. J., and DONGES and PORTER, JJ.
Alex Simpson, of Jersey City, for plaintiff-inerror.
Daniel O'Regan, Prosecutor of Pleas, and Wm. T. Cahill, Asst. Prosecutor of Pleas, both of Jersey City, and Raymond J. Otis, Asst. Prosecutor of Pleas, of West New York, for the State.
The plaintiff-inerror was convicted upon an indictment charging that he caused an explosion of a certain bomb, the name of the explosive being unknown, with intent unlawfully to injure the person of another (R.S. 2:176-60). He waived a jury trial and was tried by the court in Special Sessions. The case is before us on what we regard as a strict writ of error.
The record before us consists of the writ of error, the return thereto, which contains the indictment, the statutory requisites for a waiver of jury trial (R.S. 2:191-1), the minutes showing such waiver and that the trial proceeded from day to day, and a motion for a new trial or arrest of judgment, which motion was denied and an exception taken. The exception, however, is not signed and sealed by the trial court. It therefore has no legal significance and may not efficaciously be assigned for error. State v. Black, 86 N.J.L. 520, 522, 93 A. 91, affirmed 89 N.J.L. 723, 99 A. 1071. It is entirely settled that the granting of a new trial is a matter of discretion in the trial court, State v. Corrado, 113 N.J.L. 53, 172 A. 571; and that motions to arrest judgment must be determined on the record alone, not on the proceedings or testimony had on the trial. Powe v. State, 48 N.J.L. 34, 2 A. 662; State v. Crusius, 57 N.J.L. 279, 280, 31 A. 235; State v. Landecker, 100 N.J.L. 195, 200, 126 A. 408.
The record does, however, disclose that when arraigned in the Court of Quarter Sessions the defendant pleaded not guilty, but that after the defendant waived trial by jury no new plea was entered in the Court of Special Sessions. The plaintiff-inerror therefore argues that the statute (2:191-1) requires that a new plea be entered and that the court, in the absence of a plea in Special Sessions, regardless of the fact that a plea was entered in the Quarter Sessions, lacked jurisdiction of the person. First, we think that a fair reading of the statute (2:191-1), upon which plaintiff-inerror relies, admits of no such interpretation as that for which plaintiff-inerror contends. Again, assuming, and of course it cannot be disputed, that the court had jurisdiction over the subject matter but not over the person, because no plea was entered in the Special Sessions, he takes no benefit thereby on this appeal for the reason that he voluntarily took part in the trial of the cause on its merits and undertook, by his defense, to rebut the state's case. He thereby submitted his person to the jurisdiction. See State v. Rosenblum, 102 N. J.L. 125, 127, 130 A. 614. Then there is a further reason that stems from that just mentioned; our Court of Errors and Appeals has held that where a plea in the Quarter Sessions was withdrawn in order that a motion might be addressed to the indictment, and the case was proceeded with to trial, without a reinstatement of the "not guilty" plea, none the less the defendant had tendered a plea by conduct. Garland v. State of Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772; State v. O'Toole, 115 N.J.L. 205, 178 A. 780; State v. Simon, 116 N.J.L. 452, 185 A. 366. We perceive no debatable distinction between this case and those just cited.
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