State v. Weiner

• Decision Date: 06 February 1925
• Docket Number: No. 12.,12.
• Citation: 127 A. 582
• Parties: STATE v. WEINER.
• Court: New Jersey Supreme Court

127 A. 582

STATE

v. WEINER.

No. 12.

Supreme Court of New Jersey.

Feb. 6, 1925.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Essex County,

Harry Weiner was convicted of involuntary manslaughter, and he brings error. Reversed.

Argued October term, 1924, before GTJMMERE, C. J?and PARKER and KATZENBACH, JJ.

Henry H. Pryling, of Newark, for plaintiff in error.

J. O. Bigelow, of Newark, for the State.

KATZENBACH, J. On February 24, 1924, Harry Weiner was operating a jitney bus from the terminal of the Hudson Tubes in Newark to the town of Irvington. The terminus of the route in Irvington was at Boyden and Fortieth streets. Fortieth street is in the suburbs of Irvington. It is a paved street. Upon it the traffic is light. The houses are few in number. On the easterly side of the street is an improved sidewalk. About 6:15 p. m. on the day mentioned Weiner was driving his bus southwardly on Fortieth street. At the same time one James Kellett, with his two sons, Thomas and Joseph, aged 10 and 8 respectively, were proceeding in the same direction upon Fortieth street as the bus was being driven. The boys each had a small express wagon. They were in advance of their father, who was propelling a hand wagon. The purpose of all was to procure some wood which had been cut from a lot fronting on Fortieth street. Joseph was propelling his wagon on the sidewalk, and was racing with his brother, Thomas, who was propelling his wagon along the westerly curb line of the street pavement. Weiner overtook Thomas and struck him. The injury was fatal. Weiner was indicted by the Essex county grand jury for involuntary manslaughter. He was tried and convicted. In his behalf a writ of error has been issued, bringing from the Essex county court of quarter sessions to this court the record of the conviction. The case is before us on a strict bill of exceptions, and also under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863); the entire record being certified.

The first point argued in behalf of the plaintiff in error deals with the admission by the trial court of the testimony of James Kellett, the father, as to the speed of the bus at the time it passed him, which he placed at between 30 and 35 miles per hour. When the bus passed Kellett he was about 1,200 feet from the point where the accident took place. He noticed the license number when the bus passed him. He was not sure, however, whether the number was 34 or 84. When he reached the scene of the accident he noticed that the number was 34.

It is contended that it was improper to admit this testimony, first, because there was no evidence to indicate that the bus which Kellett saw was the bus which caused the accident, and, second, for the reason that the bus at the time it passed Kellett was too far distant from the place of the accident to make its speed at the time it passed Kellett relevant. As the bus which passed Kellett was traveling in the same direction as he was traveling, and as Kellett was able to determine that the bus was numbered either 34 or 84, and as the period between the time the bus passed Kellett and the accident occurred was so brief, we think the testimony of Kellett admissible. The admission or rejection of such evidence is a matter within the discretion of the trial court. Noyes v. State, 41 N. J. Law, 418. The exercise of the court's discretion in its admission or rejection under the circumstances of the present case will not be disturbed. The ruling of a trial court in a matter of discretion will only be reversed where the facts clearly indicate an abuse of that discretion.

The next point argued by the plaintiff in error involves the admissibility of testimony that skid marks, made by...