State v. Block

57 A. 391, 70 N.J.L. 398, 41 Vroom 398, 1904 N.J. Sup. Ct. LEXIS 140

• Court: Supreme Court of New Jersey
• Decided: March 7, 1904
• Status: Published

Opinion

The opinion of the court was delivered by

Hendrickson, J.

The plaintiff in error was convicted in the Hudson Quarter Sessions of a misdemeanor upon an indictment based upon the statute entitled “An act to punish persons who unlawfully obtain electric power,” approved March 22d, 1899. Pamph. L., p. 210. The indictment charged the defendant below with having in his possession, on September 3d, 1902, at the town of Union, in said county, a certain metre for the purpose of registering and recording the amount of electric current then and there supplied to him by the United Electric Company of New Jersey, and with willfully, unlawfully and without the permission and authority of said company, tampering with said metre by then and there inserting a pin between the disc and magnets thereof, in such manner that said metre did not record or measure the full amount of electric current supplied to him, he being then and there a customer of said company.

The defendant has brought error, under which he now challenges the validity of the conviction. The trial judge overruled defendant’s offer to show by the company’s books the amount of electricity consumed by the defendant during the years 1901, 1902 and 1903, to date. While the record does not show the purpose of the offer, it was presumably made to show whether there was any falling off in the quantity registered during the period covered by the alleged tampering with the metre. It is urged that the overruling of this evidence was reversible' error, on the ground that one of the facts tó be proved was that by reason of the tampering the metre did not measure or record the full amount of electric current supplied to him. In examining this question, it should be observed that the charge was not the unlawful abstraction of any particular amount of the electric current, but with having, on one particular day (September 3d, 1902), tampered, &e., so that the metre did not record, &c., the full amount, &c., and also the fact that within an hour after the discovery of the tampering the wire was cut by the company’s agents, stopping the defendant’s supply. The charge does not relate to such criminal conduct before or after the alleged date. The absence or presence of any decided discrepancies in the amount charged to the defendant .during the several years named, or during the months of said years, would obviously throw little, if any, light upon the charge in the indictment, and hence the evidence offered would be irrelevant, as being too remote and not properly admissible.

But granting that under some circumstances such evidence might be admissible, I think under the facts and circumstances proven, the evidence offered was so remote from the issue that there was no error in overruling it. Three officers and employes of the company, thoroughly familiar with the working of the metre and its mechanism, called at defendant’s store on the day in question to inspect his metre, and they all testified to finding that the seal of the metre had been tampered with, and that a black pin or wire was inserted between the disc and magnets so that the former could not rotate as it usually did, and as was necessary in order to measure the current passing through; and that while there the lights in the store were burning, and the current was passing through, but the disc did not rotate because of the pin, and that after they removed the pin the disc rotated as usual. The defendant came in' while the inspection was going on, and remained ten or twelve feet away, and his only remark was, “I know nothing about this,” and when invited to come close and look at it he failed to do so. There was no attempt to dispute the existence of these conditions, and it must be accepted as a properly proven fact in the case that the metre had been tampered with by some one, and as a result it did not, on the date in question, measure or record the full amount of the electric current supplied to the defendant. The only question left for the jury was as to whether the defendant was the person who had unlawfully done the tampering charged. Obviously, upon this question the accounts offered could not, under the circumstances, throw any light. Whether they became admissible in answer to some evidence that was produced by the state, will now be considered.

One Middleton, an electrician, testified for the state that on August 17th preceding he was working for one R., and with him was fixing a sign at defendant’s place; that when this was finished defendant asked R. when he was “going to fix that;” that R. then sent witness for a hatpin; that witness went and brought one and gave it to R.; that R. and defendant then went over to the electric light metre, and some one took a stepladder over and defendant was standing at the door, and then R. said, “It is fixed now; turn on the light,” which was done; and R.- then said, pointing to the 1,000 dial, “See, it don’t move now;” that-defendant stood on the stepladder, looked at it and said, “It don’t move;” that R. said, “I will show you how to fix this; you can work it fifteen days and burn free, and the next fifteen days you can let your bill run;” and defendant replied, “All right.” It may be said that if the books showed that the charge for August was up to the other months, that would tend to affect the credibility of the testimony of Middleton, who was contradicted by the defendant. But there was no proof that the pin device was continued through August, nor that the number of lights used and the hours of use in August were the same as they had been in the other months with which the comparison was to be made. It is a settled rule “that the evidence offered must correspond with the allegations and be confined to the point in issue,” and' that under it “all evidence of collateral facts or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute should be excluded.” 1 Greenl. Evid., §§ 51, 52. And it was held in the Court of Errors that the admission or rejection of evidence of this character, though bearing remotely on the issues involved or uj)on the credibility of witnesses, is within the discretion of the judge, and its admission or rejection is no ground for reversal on error. Schenck v. Griffin, 9 Vroom 462.

Another witness testified to a proposition by defendant to him, in the latter part of August in that year, to go to New York with him to fix up an electric metre that would save electric lights from burning; that Mr. E. had taken hold of it and that he wanted witness to take hold of it, which he (witness) refused to do. The defendant testified to having no knowledge of any tampering with the metre, and entered ,a denial of having made the statements attributed to him by the witnesses named. After a reading of the whole testimony, we may justly adopt the language of Mr. Justice Depue, in Schenck v. Griffin, supra, and say: “If the proof offered had any weight in deciding the issue between the parties, its effect would be so slight that the plaintiff in error cannot be said to be injured by its exclusion.”

There were assignments of error upon exceptions taken to parts of the charge wherein the judge discussed to some extent the facts and their relative weight, but this has been so often held to be within the province of the judge that further comment is unnecessary. There was also an exception to the charge of the court in leaving it to the jury to say whether if the defendant did the act charged it was done without the consent of the company, defendant contending there was no evidence to justify such an inference. But we think the circumstances proven would justify such an inference by the jury.

Under the evident impression that the entire record was brought up in this ease pursuant to sections 136 and 137 of 'the Criminal Procedure act (Pamph. L. 1898, pp. 866, 915), -the defendant’s counsel has specified several causes for relief which we are asked to consider. But the entire record 'is not certified as such by the trial judge, nor is its certification required by the terms of the writ. This is the established practice. Ryan v. State, 31 Vroom 552; State v. Shutts, 40 Id. 206. We are not permitted, therefore, to notice the causes for relief not covered by exceptions taken at the trial. The result is that the judgment below must be affirmed.