State v. Tolla

• Decision Date: 12 March 1906
• Citation: 63 A. 338,73 N.J.L. 249
• Court: New Jersey Supreme Court
• Parties: STATE v. ANTOINETTE TOLLA

63 A. 338

73 N.J.L. 249

STATE

v. TOLLA.

Supreme Court of New Jersey.

March 12, 1906.

(Syllabus by the Court.)

Antoinette Tolla was convicted of murder.Motion for new trial.Case certified from the court of oyer and terminer.Court advised to deny the motion.

See62 Atl. 675.

Argued February term, 1906, before GUMMERE, C. J., and HENDRICKSON and DIXON, JJ.

Ernest Koester, for the State.Samuel Kalisch, for defendant.

DIXON, J.The defendant was convicted of murder in the first degree on April 24, 1905, in the Bergen county oyer, and on May 1, 1905, was sentenced to death, June 9, 1905, being the time then appointed for her execution.The current term of the oyer ended on or before the second Tuesday of September 1905.On May 16, 1905, the defendant sued out a writ of error returnable to the following June term of the court of errors, and at the November term of that court the judgment was affirmed.On December 12, 1905, the record of conviction having been remitted to the oyer, that court appointed January 12, 1906, for the execution of the sentence, but execution has since been respited until March 12, 1906.On February 21st last the defendant applied to the Bergen oyer for a new trial, and that court has certified to the Supreme Court the question whether the oyer now has power to grant the application.

The application is not founded upon anything affecting the validity or regularity of the judgment.Counsel for the defendant concedes that at common law a new trial could not be granted in cases of felony (1 Chit.Crim. Law, 532); although in Arundel's Case (6 Rep. 14) Lord Coke states that after a conviction of murder a new trial was granted because the jury had been drawn from a wrong venue, the ground being that "the trial was insufficient, for the defendant's life was never in jeopardy."In this state, however, the power of the court to grant a new trial after conviction of felony, even capital, has been recognized and exercised from very early times.State v. Wells, Coxe, 424 (1790); State v. Aaron, 1 South. 231 (1818).And such power is, I think, asserted in all the states of this Union, on grounds sufficiently indicated by Parker, C. J., in Commonwealth v. Green, 17 Mass. 515(1822).But there are two settled legal rules controlling the exercise of this power when not aided by statute.One is, that the motion for a new trial should be made before final judgment is perfected and cannot afterwards be entertained unless the judgment be opened; the other is, that after the term in which the judgment was regularly perfected, the court cannot disturb or alter the judgment in a matter of substance unless it be shown that the judgment was rendered without full jurisdiction or was obtained by fraud.The first of these rules is one of procedure merely, but the second, as was said by Mr. Justice Miller in Bronson v. Schulten, 104 U. S. 410, 417, 26 L. Ed. 797, relates to the power of the court; and...