State v. Tapack

• Decision Date: 06 May 1909
• Citation: 72 A. 962,78 N.J.L. 208
• Parties: STATE v. TAPACK.
• Court: New Jersey Supreme Court

72 A. 962

78 N.J.L. 208

STATE

v. TAPACK.

Supreme Court of New Jersey.

May 6, 1909.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Passaic County.

Louis Tapack was convicted of burglary, and brings error. Reversed.

Argued November term, 1908, before GARRISON, PARKER, and VOORHEES, JJ. .

Ward & McGinnis, for plaintiff in error. Eugene Emley, Prosecutor of the Pleas, for the State.

PARKER, J. Richard Coyle and Louis Tapack were indicted by the grand jury of Passaic county jointly upon five counts: The first, for breaking and entering by night a certain silk mill named in the indictment; the second, for the same by day; the third, for entry without breaking; the fourth, for grand larceny of 700 pounds of raw silk; and, the fifth, for receiving stolen goods. Coyle turned state's evidence and was the principal witness against Tapack, testifying that the latter had incited him to commit the crime in the mill where he was or had been employed, and that they two broke in and stole the silk, which Tapack subsequently took away to dispose of. The first count was withdrawn from the jury by the court, and the last one ignored, so that the general verdict of guilty, which was rendered, was predicated on the count for breaking and entering by day, the count for entering, and the count for grand larceny. The conviction is now before us on writ of error without any certificate of the judge returning the entire proceedings under section 136 of the criminal procedure act of June 14, 1898 (P. L. p. 915), but on strict bill of exceptions, with a general exception, as permitted by section 140 of the same act, to the charge of the court, and specific assignments of error thereunder to the portions of the charge claimed to be erroneous, in accordance with the established practice. State v. MacQueen, 69 N. J. Law, 476, 529, 55 Atl. 45.

The defense was an alibi, and it was only in the portion of the charge bearing on this defense that we find any injurious error; but on this account there must be a reversal. The court charged on this point: "Tapack undertakes to prove what in law is called an alibi. Now, gentlemen of the jury, what is the legal proposition in regard to an alibi? The courts say that an alibi must be viewed with scrutiny, with care, and I think the language of one of the decisions is that it must be viewed with 'rigid scrutiny'; yet, of course, when it is made out, it is quite sufficient to excuse and to acquit the defendant. But the courts say that you must look at it with care and caution, and the courts further say that the proof must reasonably exclude the possibility of the presence of the accused —reasonably exclude the possibility of his presence. So you see, gentlemen of the jury, it appears from this legal proposition as if the defendant should satisfy you as to time and place sufficiently in regard to this question of alibi...