State v. Snover

• Decision Date: 01 December 1924
• Docket Number: No. 3.,3.
• Citation: 126 A. 850
• Parties: STATE v. SNOVER.
• Court: New Jersey Supreme Court

126 A. 850

STATE

v. SNOVER.

No. 3.

Supreme Court of New Jersey.

Dec. 1, 1924.

Error to Court of Quarter Sessions, Warren County. "Not to be officially reported."

Thomas L. Snover was convicted of arson, and he brings error. Affirmed.

Argued November term, 1923, before KALISCH and KATZENBACH, JJ.

J. M. Roseberry & Son, of Belvidere, for plaintiff in error.

Sylvester C. Smith, Jr., of Pbillipsburg, for the State.

PER CURIAM. This case is before this court upon a writ of error directed to the Warren county court of quarter sessions.

Thomas L. Snover, the plaintiff in error (hereafter referred to as the defendant), was indicted with three others by the grand jury of Warren county. The indictment contained three counts. The first count charged that the defendants "did willfully and maliciously set fire to and burn a certain barn not a parcel of a dwelling house, and a certain grist mill, the property of one Harriet Willever." The defendant was tried and convicted. He was sentenced upon the first count to pay a fine of $500 and to stand committted to the state prison at Trenton for a minimum term of not less than one year, and a maximum term of not more than seven years. Sentence on the other two counts was suspended.

The only judgment under review is the judgment on conviction upon the first count of the indictment. A writ of error will not lie in a criminal case until sentence has been pronounced. No sentence on the second and third counts of the indictment was pronounced.

The case is before us on a strict bill of exceptions. The record contains only a part of the testimony taken at the trial. The first point made in behalf of the defendant is that the trial court erred in admitting a record of insurance sent to the insurance company by the agent, and a duplicate of the insurance policy. The defendant contends that no notice to produce the policy of insurance was served upon the defendant, and that secondary evidence could not be introduced in default of the service of such motive. The fact of insurance is only important on the question of motive, and secondary evidence is admissible to prove insurance. In a criminal case, the defendant is not obliged to respond to a notice to produce. He cannot be made to give any evidence that would tend to incriminate him. The copy of an insurance policy was admitted in the case of Commonwealth v. Hubbard, 05 Pa. Super. Ct. 213. Whether or not secondary evidence shall be admitted rests within the discretion of the court. This exercise of discretion will generally not be disturbed by an appellate court. Johnson v. Arnwine, 42 N. J. Law, 450, 36 Am. Rep. 527. The trial court did not err, in our opinion, in admitting the record of insurance and the duplicate of the policy.

The second point argued in behalf of the defendant relates to the third, fourth, and fifth assignments of error. These assignments deal with three questions put, upon cross-examination, to a witness, Isaac E. Wildrick, which were overruled. These questions were as follows:

"And you got hold of a note of $2,000, secured by a mortgage, that he had given to your mother, and put it in Judge Shipman's hands for collection, did you not? Did you not immediately after her death, take a note given by William C. Howell to her, and sell it as heir at law to Andrew Yetter? The will was proved in the surrogate's office September 1, 1922, was it not?"

The defendant insists that he was entitled to show the...