State v. Zdanowicz

• Decision Date: 20 July 1903
• Citation: 55 A. 743,69 N.J.L. 619
• Parties: STATE v. ZDANOWICZ.
• Court: New Jersey Supreme Court

55 A. 743

69 N.J.L. 619

STATE

v. ZDANOWICZ.

Court of Errors and Appeals of New Jersey.

July 20, 1903.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Mercer County.

Bartholomew Zdanowicz was convicted of murder, and brings error. Affirmed.

Edward Robert Walker, for plaintiff in error.

William J. Crossley, for the State.

MAGIE, Ch. The writ of error brings up for review the conviction of the plaintiff in error of the crime of murder in the first degree, and a consequent judgment thereon in the court of oyer and terminer in the county of Mercer. The plaintiff in error has caused the entire record of the proceedings had upon his trial to be returned, under the provisions of section 136 of the Criminal Procedure Act of 1898 (P. L. 1898, p. 915). He has, however, specified as the causes for relief or reversal, required by section 137 of that act, no other matters than such as were likewise presented by assignments of error.

In behalf of the plaintiff in error the argument is first directed to an alleged error of the trial court in the admission of a question put to plaintiff in error when under examination as a witness in his own behalf. The rule of the common law which excluded a person indicted for crime from testifying in his own behalf was first altered in this state by a supplement to the act concerning witnesses, approved February 15, 1871. P. L. 1871, p. 12. It was thereby enacted that upon the trial of any indictment, allegation, or accusation of any person charged with crime, such person should be admitted to testify as a witness upon the trial, if he should offer himself as a witness in his own behalf. This act was repealed by the Revision of 1874, but the eighth section of the evidence act of that revision, approved March 27, 1874, was a re-enactment of the same provision. 2 Gen. St. p. 1398. The evidence act of the Revision of 1874 was repealed by the act to repeal sundry acts relating to evidence, approved March 23, 1900. P. L. 1900, p. 382. The act concerning evidence (Revision of 1900), approved March 23, 1900 (P. L. 1900, p. 362), contains no clause permitting a per son charged with crime to testify in his own behalf on the trial of an indictment, allegation, or accusation. But by the provisions of section 57 of the act entitled "An act relating to courts having criminal jurisdiction and relating to proceedings in criminal cases" (Revision of 1808, approved June 1-J, 1898; P. L. 1898, p. 860), it is, among other things, enacted that upon the trial of any indictment the defendant shall be admitted to testify if he shall offer himself as a witness. The record and the bills of exceptions show that the plaintiff was indicted by the grand jury, and thereby charged with the crime of murder, and put upon his trial in the court of oyer and terminer, and that he therein offered himself as a witness in his own behalf, and was admitted to testify. The point now made is presented by the exception, duly sealed, to the admission of a question over the objection of the plaintiff in error.

The objection to the question was made upon the ground that it was not competent cross-examination. That objection is now supported in argument on the ground that the' admission of the question violated the well-settled doctrine which prohibits a person accused of crime from being compelled to testify against himself. By the fifth amendment to the Constitution of the United States it is, among other things, provided that no person shall be compelled in any criminal case to be a witness against himself. Many of the states have included a similar prohibition in their Constitutions. There is no such prohibition in the Constitution of the state of New Jersey. It is not deemed necessary to consider whether this constitutional provision will operate to prevent any state—if it is conceivable that any state should desire to do so—from exacting laws establishing a practice in criminal cases such as is in vogue in countries not following the course of the common law. or permitting an accused person to be subject to such compulsion as may be exerted by harassing examination or other means, forcible or practically forcible, compelling him to testify against himself; or to prevent the adoption by any state of a practice which might produce that effect. Although we have not deemed it necessary to insert in our Constitution this prohibitive provision, the common-law doctrine, unaltered by legislation or by lax practice, is by us deemed to have its full force. In New Jersey no person can be compelled to be a witness against himself. But this privilege, with which every individual is clothed for his own protection, is one that may be waived. When one voluntarily admits the commission of crime, or facts tending to justify an inference of the commission of crime, his voluntary confession is always admissible against him. When a person charged with the commission of crime offers himself as a witness in his own behalf, under laws permitting him to do so, he undoubtedly waives his protective privilege to some extent. He becomes a witness, and as a testifying witness he may be cross-examined. How far such cross-examination may extend does not require consideration in this case, and we do not intend now to indicate the limit to which such cross-examination may properly be extended. Nor is it deemed necessary to consider what compulsion may be applied to require answers to proper questions asked of such a witness in cross-examination. In the state of New York, in which this privilege of the accused person is protected by a constitutional provision, the Court of Appeals calls attention to the varying decisions of the courts of other states in respect to the scope of the right of cross-examination under statutes permitting such a person to become a witness in his own behalf. It points out that in some of the states the rule has been adopted that such a witness subjects himself to the same rules of examination as any other witness, and may be asked any questions, on cross-examination, on matters pertinent to the issue: and that in other states it has been held that the right of cross-examination under such statutes is confined to matters referred to in the examination in chief. The opinion expressed by the Court of Appeals was that, notwithstanding the prohibition in the Constitution, no constitutional right of an accused was infringed, if, upon his electing to take the stand as a witness in his own behalf, he was subjected to the ordinary rides of examination. People v. Tice, 131 N. Y. 661, 30 N. E. 494. 15 L. R. A. 669

It is sufficient to dispose of the contention in this regard in this case to note two grounds upon which it is deemed Ineffective. In the first place, if the question asked was within the line of proper cross-examination, it cannot be claimed to be compulsory in character. Whether, if the witness had refused to answer, the court could have compelled him to do so, or whether, upon such refusal, the court could have struck out his evidence given on his direct examination, or otherwise exerted a compulsive power, is not. therefore, before us. In the second place, the counsel of plaintiff in error does not contend that plaintiff in error was protected from any cross-examination. On the contrary, the claim is that, being properly subject to cross-examination, the court...