State v. Bannell

Supreme Court of New Jersey

State v. Bannell

126 A. 455, 2 N.J. Misc. 1014, 1924 N.J. Sup. Ct. LEXIS 62

DecidedOctober 7, 1924

StatusPublished

This text of 126 A. 455 (State v. Bannell) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Bannell, 126 A. 455, 2 N.J. Misc. 1014, 1924 N.J. Sup. Ct. LEXIS 62 (N.J. 1924).

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Opinion

Per Curiam.

The defendant was arraigned and tried on two indictments based upon the Intoxicating Liquor act of 1922. P. L., p. 615. The first indictment was in three counts, the first count for selling, on which the jury acquitted the defendant; the second count for furnishing; as to this, there was an acquittal by direction of the court; the third count was for possessing on the 31st day of July, 1923. The second indictment was for possessing only, and laid the offense as of the 1st day of August, 1923. The case is before us on strict bill of exceptions and assignments of error. The first assignment, that the state failed to prove the defendant guilty of possessing, &c., is not based on any judicial ruling, and is therefore futile. The third, that the verdict was against the weight of evidence, is necessarily based on the act of 1921, which is confined to eases where the entire record is brought up under section 136 of the Criminal Procedure act, which is not the case here. The fourth assignment is that the court, did not charge properly on the question of reasonable doubt. This is bad because lacking in definiteness. See [1015]*1015State v. Spallone, 117 Atl. Rep. 151. Tho filth is that tho court rejected legal evidence offered by plaintiff in error, and the sixth that the court admitted illegal evidence offered by the defendant in error. These are futile for the same reason jnst given. The eighth is abandoned. This leaves only the second and seven tit assignments for consideration.

The second is that the court failed to- direct a verdict in favor of the defendant. Inasmuch as, in our view, a case for the jury was adequately presented, the motion to direct an acquittal was properly denied.

The seventh is as follows: “Because the co-urt did not discharge defendant, who is a married woman living and cohabiting with her husband, and the testimony showed that if any crime was committed it was committed in the presence of her husband, who was guilty, and not the plaintiff in error.” The effect of this assignment of error is really to-challenge the action of the court in refusing to direct an ae-. quittal of the defendant, who is now conceded to have been a married woman, on the ground of the common law presumption in certain cases that she was acting under the coercion and control of her husband. We think a fair jury question was. presented on this point also. It is true that she and her husband were living together in I he same house, where, as found by the jury, she kept the liquor, but there was also evidence to- show that, while he was a farmer, she was conducting a little roadside refreshment stand, and, according to the evidence offered for the state, was surreptitiously selling liquor which was kept in the house^ where she had entire access to it, and where, on the state’s evidence, she procured, it for the purpose of supplying the state witnesses. The trial judge properly instructed the jury on the presumption arising from the relation of husband and wife, reviewed the evidence tending to- show the personal responsibility of the defendant, and properly left to- them to say whether the ordinary presumption had been rebutted, and the jurv evidently found that it had.

Wc find no error properly brought before us calling for reversal, and the judgment is therefore affirmed.

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Per Curiam.

The defendant was arraigned and tried on two indictments based upon the Intoxicating Liquor act of 1922. P. L., p. 615. The first indictment was in three counts, the first count for selling, on which the jury acquitted the defendant; the second count for furnishing; as to this, there was an acquittal by direction of the court; the third count was for possessing on the 31st day of July, 1923. The second indictment was for possessing only, and laid the offense as of the 1st day of August, 1923. The case is before us on strict bill of exceptions and assignments of error. The first assignment, that the state failed to prove the defendant guilty of possessing, &c., is not based on any judicial ruling, and is therefore futile. The third, that the verdict was against the weight of evidence, is necessarily based on the act of 1921, which is confined to eases where the entire record is brought up under section 136 of the Criminal Procedure act, which is not the case here. The fourth assignment is that the court, did not charge properly on the question of reasonable doubt. This is bad because lacking in definiteness. See [1015]*1015State v. Spallone, 117 Atl. Rep. 151. Tho filth is that tho court rejected legal evidence offered by plaintiff in error, and the sixth that the court admitted illegal evidence offered by the defendant in error. These are futile for the same reason jnst given. The eighth is abandoned. This leaves only the second and seven tit assignments for consideration.

The second is that the court failed to- direct a verdict in favor of the defendant. Inasmuch as, in our view, a case for the jury was adequately presented, the motion to direct an acquittal was properly denied.

The seventh is as follows: “Because the co-urt did not discharge defendant, who is a married woman living and cohabiting with her husband, and the testimony showed that if any crime was committed it was committed in the presence of her husband, who was guilty, and not the plaintiff in error.” The effect of this assignment of error is really to-challenge the action of the court in refusing to direct an ae-. quittal of the defendant, who is now conceded to have been a married woman, on the ground of the common law presumption in certain cases that she was acting under the coercion and control of her husband. We think a fair jury question was. presented on this point also. It is true that she and her husband were living together in I he same house, where, as found by the jury, she kept the liquor, but there was also evidence to- show that, while he was a farmer, she was conducting a little roadside refreshment stand, and, according to the evidence offered for the state, was surreptitiously selling liquor which was kept in the house^ where she had entire access to it, and where, on the state’s evidence, she procured, it for the purpose of supplying the state witnesses. The trial judge properly instructed the jury on the presumption arising from the relation of husband and wife, reviewed the evidence tending to- show the personal responsibility of the defendant, and properly left to- them to say whether the ordinary presumption had been rebutted, and the jurv evidently found that it had.

Wc find no error properly brought before us calling for reversal, and the judgment is therefore affirmed.

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126 A. 455, 2 N.J. Misc. 1014, 1924 N.J. Sup. Ct. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bannell-nj-1924.

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