State v. Yarrow

• Decision Date: 22 March 1928
• Citation: 141 A. 85
• Parties: STATE v. YARROW.
• Court: New Jersey Supreme Court

141 A. 85

STATE

v. YARROW.

Court of Errors and Appeals of New Jersey.

March 22, 1928.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Gloucester County.

George Yarrow was convicted of first degree murder, and brings error. Affirmed.

Edison Hedges, of Atlantic City, for plaintiff in error.

Joseph J. Summerill, Jr., of Camden, Prosecutor of the Pleas, for the State.

WALKER, Chancellor. The plaintiff in error, defendant below, George Yarrow, was convicted in the Gloucester county court of oyer and terminer of murder in the first degree, without recommendation to life imprisonment, and thereupon received sentence of death. He now brings error into this court, and assigns, files, and serves six assignments, "reasons or causes" for reversal, as follows: (1) Because the trial court erred in ruling that the purported confession by the defendant of the murder charged against him was voluntary; (2 and 3) because the trial court erred in admitting in evidence what purported to be the defendant's voluntary confession, which was procured by violence, threats, and intimidation; (4) because the trial court erred in excluding from the jurors' presence and consideration the testimony concerning the question as to whether the confession was voluntary or Involuntary; (5) because the trial court erred in not submitting to the jury the disputed question of fact as to whether or not the confession was voluntary, there being much credible testimony that the same was obtained by threats, violence, and intimidation, and the court should have instructed the jury that, if they believed the confession was thus abstracted, the same should have been excluded, and, in the court's failure so to do, the defendant suffered manifest harm (wrong) and injury; and (6) that the verdict of the jury was against the weight of the evidence, because, if the confession were excluded, sufficient evidence would not remain to convict.

The defendant brought this case here under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), but did not specify or serve any causes in the record relied upon for relief or reversal under section 137, unless his adding to the assignments of error the words "reasons or causes," and filing both as a single pleading, amounts to compliance. Such is not the established practice, and is unusual; there being quite generally specified and served separate causes for relief and reversal under section 137 of the Criminal Procedure Act; assignments and specifications of causes being things apart from each other. However, no point is made of this, for, in favorem vit? the entire record will be considered as invoked by proper proceedings.

The assignments of error and causes for reversal, reduced to a minimum, amount to these: (1) Because the trial court erred in excluding the jury when taking the testimony on the question of the confession; (2) because the court erred in admitting the confession as voluntary, and in not submitting to the jury the disputed question as to whether or not it was voluntary; and (3) because the verdict of the jury was against the weight of the evidence, because, if the confession were excluded, sufficient evidence would not remain to convict the defendant.

The first two of these objections relate exclusively to the confession. And, on the hearing of the motion to admit the same in evidence, the jury was excluded from the courtroom on application of defendant's counsel, and, after the testimony on the question of the voluntariness of the confession had been submitted, the court said:

"The ruling of the court is—this is a court question—that the evidence satisfies me that whatever statement was made by Mr. Yarrow on this occasion was a voluntary statement. He says himself that there were no promises made, and the testimony that he was induced by any threats is fully met and more than counterbalanced by that testimony offered by the state, so that the ruling of the court is that the statement taken by Mrs. Lewis at this time will be received in evidence. Mrs. Lewis, you may take the stand. Mr. Lieberman (attorney of record for defendant) you may have an exception. (Exception noted for the defendant.)"

First. It is claimed on behalf of the defendant that manifest harm (wrong) and injury resulted from the court's having excluded the jury after the proceedings already mentioned took place. Yarrow himself was sworn before the court on the question of the confession, and claimed that it was extorted by threats and fear. After the testimony was taken, the judge admitted the confession, and allowed an exception. But, clearly, a defendant who requests that the jury be withdrawn during the examination of witnesses on a court question cannot afterwards be heard to say that the action, which he induced, was wrong and injurious to him.

In State v. Gruff, 68 N. J. Law, 287, 53 A. 88, this court had before it the question of the admission of a confession by the defendant in a criminal case (murder), and said that, the duty of the judge on the question of admitting the confession being distinct from that of the jury, it was not erroneous for him to conduct such examination out of their presence; and Mr. Justice Dixon, writing the opinion, at page 290 (53 A. 89), said:

"Uusually, indeed, the testimony to be considered by the judge on the points mentioned should be taken in the presence of the jury; for it will tend, not only to instruct the judge as to the admissibility of the confession, but also to enlighten the jury as to the credibility of the confession if admitted in evidence. But when, as here, the evidence tendered on the preliminary question of admissibility is such as would unfavorably affect the prisoner in the minds of the jury, and illegally if the confession were finally held to be not admissible, it certainly promotes the due administration of law for the judge alone to hear that evidence in the first instance. If he then holds the confession to be admissible, the same evidence, so far as it relates to the credibility of the confession,...