State v. Young

93 N.J.L. 396, 8 Gummere 396

• Court: Supreme Court of New Jersey
• Decided: November 17, 1919
• Status: Published

Opinions

Swayze, J.

The facts in the case and the legal questions presented are set forth in the report in 103 Atl. Rep. 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, someone else. The husband, who was the chief witness for the state, was called in rebuttal and testified that he did not remove ant of the organs from liis wife’s body. He their testified, in response to counsel for the defence, that he was under indictment, and, in effect, that be had been promised by the prosecutor that if he testified in this case for the state, ho would he 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. A.s 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. L. 430, and brings the case within the purview of section 136 of the Criminal Procedure act 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 tendency 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 the 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 Id. 601. All the argument in that case was washed if the mere indictment was admissible for the same purpose. The matter is regulated by statute. Comp. Stat., p. 2211,. § 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 offence 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. ISTo 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.

If: 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 hound 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 íuling that the evidence was proper was an approval by the judge of a mere suggestion of guilt by tire 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 siiffered manifest wrong and injury is obvious. The jury hoard 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 destined. 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 now trial.