State v. Young

• Decision Date: 17 November 1919
• Citation: 108 A. 215,93 N.J.L. 403
• Court: New Jersey Supreme Court
• Parties: STATE, DEFENDANT IN ERROR, v. JOHN H. YOUNG, PLAINTIFF IN ERROR

108 A. 215

STATE

v. YOUNG.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1919.

Kalisch, Parker, Heppenheimer, and Williams, JJ., dissenting.

Error to Supreme Court.

On rehearing.Former opinion (103 Atl. 173) reversed.

Robert H. McCarter, of Newark, for plaintiff in error.

Wilbur A. Mott of Newark (J. H. Harrison, of Newark, on the brief), for the State.

SWAYZE, J.The facts in the case and the legal questions presented are set forth in the report in 103 Atl. 173.We need consider only one point The defendant testified that he discovered that there was a dead foetus in the womb and operated for its removal.The woman's body was disinterred, and it was found that she had been eviscerated.The question was by whom—Dr. Young or the undertaker, or perhaps some one else.The husband, who was the chief witness for the state, was called in rebuttal, and testified that he did not remove any of the organs from his wife's body.He then testified, in response to counsel for the defense, that he was under indictment, and in effect that he had been promised by the prosecutor that, if he testified in this case for the state, he would be relieved from the indictment.Thereupon, on redirect examination, counsel for the state asked if he was under Indictment jointly with Dr. Young for performing a criminal abortion on his wife, and he answered in the affirmative.As the record stands, his answer preceded the objection of defendant's counsel.Whether this is a true report of the order of events or not is questionable, since a stenographer can hardly be held to absolute accuracy in the order, where objection and answer may come together, especially in the case of a biased witness.

We assume in favor of the state that the answer came first.There is nothing, however, to indicate that counsel for the defendant delayed his objection for the purpose of speculating on the answer.Be that as it may, the trial judge treated the objection as timely and calling for a ruling, and he ruled, "That is proper."This was judicial action, within the rule of State v. Hummer, 81 N. J. Law, 430, 67 Atl. 294, and brings the case within the purview of section 136 of the Criminal Procedure Act(2 Comp. St. 1910, p. 1863), as to the effect of the erroneous admission or rejection of testimony.That the admission of the testimony was erroneous is clear.The witness was not only permitted to testify to the contents of a public record, but also to the fact that the defendant had been charged with another crime from that for which he was on trial—a crime that had no tendancy logically to prove the substantive case of the state.It can hardly be supposed that proof even of the crime of abortion, certainly not proof of an indictment, tends to prove negligence amounting to manslaughter in a surgical operation for a different purpose.It only proves that the state meant to have more than one chance for a conviction.The evidence bore only on the credibility of the defendant.A mere charge of crime cannot affect a witness' credibility, since, even if it take a solemn form of an indictment, the accused is presumed innocent.It has even been questioned whether a plea of nolo contendere to an indictment made the fact admissible as a conviction.State v. Henson, 66 N. J. Law, 601, 50 Atl. 468, 616.All the argument in that case was wasted if the mere indictment was admissible for the same purpose.The matter is regulated by statute.2 C. S.p. 2217, § 1.The statute provides that the conviction of crime may be shown on the cross-examination or by the production of the record thereof.The admission of the testimony was in violation of every branch of the statutory rule.It was not proof of a conviction; it was not shown on cross-examination of the defendant, but on redirect examination of the state's own witness, whose credibility the state could not legally impeach; and what was shown was not by the production of the record, but by parol testimony.

It is said the evidence was permissible in explanation of the supposed bias of the witness, to show to what extent the indictment was related to the offense for which the defendant was then on trial.But if this consideration justified an inquiry into the charge of the indictment, the inquiry should have been limited to the witness' relation to it.The defendant had asked only as to the indictment of the witness and the promise of immunity to him.It was not competent for the state on redirect examination to ask if the indictment was not jointly with the present defendant and was not for the crime of abortion.This question was so leading that the prosecutor virtually was the witness.No doubt the question was so put for the very purpose of getting before the jury a suggestion which, however inadmissible as proof, might influence them in favor of the state.

It is said that the testimony was objected to only as immaterial, and that, if immaterial, it could not be harmful.This, however, overlooks the real question.By making objection, no matter on what ground, judicial action was called for; the judge was bound to rule correctly.Instead of holding the evidence to be immaterial, he held it to be material, for he said it was proper.If immaterial, it was not proper.The effect of the ruling was harmful, for it would have been futile for counsel for the defendant to move to strike out.He was not bound to move to strike out, but might properly acquiesce in the ruling, and rely on redress of the error in the appellate court.

It is, moreover, erroneous to say that immaterial evidence is necessarily harmless.Probably it was harmless in the cases referred to.But evidence entirely immaterial to the issue, which is what the objection means, may be very harmful.It would hardly be said that a man on trial for larceny could be proved guilty of murder, and the error passed over, if the objection was put solely on the ground of immateriality.The fact is objection on the ground of immateriality has a double aspect.It may mean that the evidence is a mere waste of time; it may mean that it is irrelevant.Which is the proper meaning depends on the case.The judge in the present case evidently took the objection in the latter sense, since he ruled that it was proper.The ruling was erroneous on the further ground that the question was leading, and a striking instance of the harm that may be done by so objectionable a question.The ruling that the evidence was proper was an approval by the judge of a mere suggestion of guilt by the state, without any proof, and must have been understood by the jury as meaning that it was of value as bearing on the present indictment, when in fact it was of no value, but was immaterial and irrelevant That the defendant suffered manifest wrong and injury is obvious.The jury heard the judge say the testimony was proper.If the defendant was guilty of abortion, his testimony about a dead foetus, for which he was not responsible, was a lie, and his credibility was injuriously affected, if not destroyed.That the witness was, if there was in fact an indictment and the charge therein was true, an accomplice, and that he was state's evidence only emphasizes the error of the court in ruling that the evidence was proper.

Let the judgment be reversed, and the record remitted for a new trial.

PARKER, KALISCH, HEPPENHEIMER, and WILLIAMS, JJ., vote for affirmance.

KALISCH, J. (dissenting).The conviction of the plaintiff in error and the judgment pronounced thereon in the Essex quarter sessions was affirmed in the Supreme Court.The case was brought from the latter court to this court for review, which resulted in an affirmance by a divided vote.Application was made for a rehearing which was granted.After a careful re-examination of the evidence in the case, and due consideration of the very able and learned argument of counsel of plaintiff in error, I have not been able to find any valid reason which would justify me to recede from my former conclusion that the judgment should be affirmed.The prevailing opinion states that the defendant testified that he discovered that there was a dead foetus in the womb and operated for its removal.But this statement, for the sake of accuracy, needs to be supplemented by an undisputed fact—that the defendant, in performing the operation, found neither a living nor a dead foetus, and hence that he was grossly mistaken in his prognosis.The defendant further testified that in performing the operation he drew down 16 inches of the intestines, which he cut off and threw into a pail which stood beside him.It was discovered, after the woman was disinterred, that she had been eviscerated by some one.It was undisputed that the defendant was the person who performed the operation.Hence there was no one who had as great an interest as he to remove any vestige of malpractice or a criminal attempt at abortion, if any such trace existed.

The ground upon which the majority opinion reverses the judgment below is based upon the following circumstances: Dr. Trusdell, a dentist, the husband of the deceased, was called by the state in rebuttal of certain testimony given by the defendant, which, briefly stated, among other things, was that he did not go to the body of his wife and remove any of the organs from it and that he did not know of any one who did.The cross-examination by defendant's counsel was as follows:

"Q.Youare under indictment in this court?A.I am.Q.Youhave been promised, or your counsel has been promised, by the state, if you testified in this case, you will be relieved from that indictment, haven't you?A.I believe that is the understanding, is it not, Mr. Mott?That is all."

Redirect:

"You are under indictment in this court jointly with Dr. Young for performing a criminal abortion on your wife, are you not?A.Yes, sir.

"Mr. McCarter: I object as immaterial."The Court: That is proper."

For the...