Opinion
Submitted October 29, 1932 —
Decided January 31, 1933.
When a defendant's confession is offered to be proved, whether the confession is admissible presents a question for the trial judge distinct from that of the jury, and it is discretionary with the judge, even over the objection of the defendant, to exclude the jury from the court room or to hear the testimony in their presence; and the action of the judge in exercising such discretion will not lead to a reversal, unless it is shown that there was an abuse of such discretion resulting in manifest wrong or injury to the defendant.
On writ of error to the Supreme Court, whose opinion was as follows:
"The plaintiffs in error were convicted upon an indictment charging that they, together with one John Crisfulli, conspired to cheat and defraud Harry McCabe and Daniel Ruder, partners, of their moneys, goods and chattels, by threatening to steal certain trucks belonging to the firm unless they were paid the sum of $75, and, in execution of the conspiracy, stealing certain trucks belonging to McCabe and Ruder after the members of the firm had refused to make the payment demanded of them. The trial of the indictment was moved against Corbett and Fiumara, the third of the conspirators — namely, Crisfulli — not being present at the trial and apparently not within the jurisdiction of the court. At the conclusion of the testimony the jury returned a verdict of guilty against Corbett, and also against Fiumara, and they have sued out the present writ of error to review the conviction entered upon the verdict.
"The first ground upon which we are asked to set aside this conviction is that the court erred in permitting the complaining witnesses, McCabe and Ruder, to testify to the theft of their property. The contention is that this testimony was immaterial and illegal because there was no proof that the defendants, or either of them, were in any way connected with the larceny of the trucks, and that this occurrence was not made the basis for the charge in the indictment against the defendants. Our examination of the case leads us to the conclusion that this contention is without merit. There was evidence that the conspirators were guilty of the larceny of the trucks. As to the contention that the larceny was not made the basis of the charge in the indictment, it is enough to say in disposing of it that the indictment charged a conspiracy to steal the trucks unless the demand of the conspirators that McCabe and Ruder should pay them $75 was complied with, and, further, that, because of the failure to comply with the demand, the trucks, goods and chattels belonging to the firm, were stolen and carried away. We conclude, therefore, that the plaintiffs in error can take nothing by this ground of reversal.
"The next contention is that the court improperly admitted in evidence a written confession made by Corbett to certain members of the police force. The pith of the contention is that the trial court erroneously permitted testimony relating to the making of the alleged confession to be submitted in the presence and hearing of the jury. Apparently the theory upon which this ground for reversal is based is that it is legal error for the court to admit evidence relating to the question of whether or not a confession is voluntary to be taken in the presence of the jury. That, in our opinion, is a matter within the discretion of the court, unless objection be made by the defendants' counsel to such a procedure. But, assuming that the course followed was legally objectionable, that fact would not justify a reversal of these convictions. The trial court, after hearing the testimony, reached the conclusion that the confession was voluntary, and it is not contended before us on the argument of this writ of error that the court was not justified in so concluding. Accepting the findings of the court that the confession was voluntary as justified by proofs offered on that phase of the case, clearly the plaintiffs in error suffered no harm or injury by the jury's hearing the testimony with relation to its voluntary character.
"The next ground for reversal is directed at an instruction in a part of the charge to the jury. The excerpt which is relied on as erroneous by counsel for the plaintiffs in error was that `no formal agreement is necessary to constitute a conspiracy.' But immediately following that statement the court charged, `it is not necessary that they come together in a formal way and agree upon something. It is sufficient if the minds of the alleged conspirators meet understandingly to bring about an intelligent and deliberate agreement to do the act specified in the indictment.' Read all together, we think this is a correct statement of the law with relation to what is required to constitute a criminal conspiracy.
"It is next said that the court committed harmful error in giving instructions to the jury in the absence of the defendants and their counsel after the court's charge had been delivered and the jury had retired for the purpose of considering the question of the guilt or innocence of the plaintiffs in error. What occurred was this: After the jury had retired to deliberate, the trial judge instructed the deputy clerk to receive the verdict, and then left the court room. Sometime after that the officer who had been sworn to take charge of the jury was handed a note from the foreman, which read as follows: `Can we get a copy of the testimony?' He delivered this note to the deputy clerk who was to receive the verdict, and the clerk thereupon endorsed on the note that the judge and lawyers and stenographers were all gone, and gave it to the officer, with instructions to hand it to the foreman, and this was done. Why counsel consider that by this occurrence the trial court gave instructions to the jury in the absence of the defendants and their counsel and without notice to them we are unable to perceive, even after having read their brief on that point. The mere statement of the clerk to the jury that the judge had left the court house, and also the lawyers in the case, and the stenographer, was not a judicial instruction by the court, or even by the clerk, to the jury.
"The next ground for reversal is that the verdict was against the weight of the evidence. Our examination of the proofs submitted leads us to the conclusion that this contention is not justified.
"It is next argued that the court erred in refusing to direct a verdict of acquittal in the case of Fiumara. What has already been said with relation to the last preceding point disposes also of this contention.
"Lastly, it is argued that the trial court erroneously refused to charge the following request submitted on behalf of the defendants: `As to the two defendants who are on trial, your verdict can be, if you so find, guilty as to one defendant and not guilty as to the other defendant.' The court had already charged the jury that the case of each of these defendants stood on its own bottom; that is, that each defendant must be proven guilty under the charge of the court. Moreover, in response to the request submitted, the court delivered the following instruction to the jury: `Of course, gentlemen, I think I made it clear to you that each man's case stands on its own bottom, and you must consider each man's case on its own merits and you must decide each one on its merits, and I think I have made that clear already.' It seems to us that this instruction was a compliance in effect with the request, although the words used by counsel were not quoted by the court. On the whole case, we conclude that the judgment under review should be affirmed."
For the plaintiff in error, J. Victor D'Aloia.
For the state, Joseph L. Smith, prosecutor of the pleas; Simon L. Fisch, first assistant prosecutor of the pleas, and Harold H. Fisher, special assistant prosecutor of the pleas.
The case was brought up for review both on bills of exceptions and by specifications of causes for reversal under sections 136 and 137 of the Criminal Procedure act. Comp. Stat., p. 1863.
The Supreme Court affirmed the conviction of the plaintiff in error (and another who does not now complain), upon an indictment under circumstances set out, and for the reasons given, in the foregoing opinion.
We think that the judgment of the Supreme Court should be affirmed for the reasons given in its opinion, with the following explanation or amplification which we deem necessary to prevent possible misconception.
It will be seen that it was urged before the Supreme Court that it was legal error for the trial court to admit evidence upon the question of whether or not the defendant's confession was voluntary, to be taken in the presence of the jury. Upon that topic the Supreme Court, among other things, said: "That, in our opinion, is a matter of discretion of the court, unless objection be made by the defendants' counsel to such procedure."
Of course, the matter was within the discretion of the trial judge. We so declared in State v. Yarrow, 104 N.J.L. 512 , where it was held that whether such a confession is admissible presents a question for the court distinct from that of the jury, and it is discretionary with the court to exclude the jury from the court room or to hear the testimony in their presence.
But, in the present case, after having properly declared that it was a matter of discretion, the Supreme Court added this: "Unless objection be made by the defendants' counsel to such procedure." That language, without explanation, would seem possibly to imply that the discretion of the trial judge is controlled by the objection of defendants' counsel; and that we think is not so. Being a matter of discretion, the trial judge, even over the objection of the defendant, may exclude the jury from the court room, or hear the testimony in their presence, and the action of the judge in exercising such discretion, will not lead to a reversal, unless it is shown that there is an abuse of such discretion resulting in manifest wrong or injury to the defendant.
The manner in which such discretion should be exercised is illustrated in State v. Gruff, 68 N.J.L. 287. There the defendant objected to the admission of his confession in evidence before the jury, and the state alleged that the confession itself would show the objection to be groundless; thereupon the judge, in the absence of the jury, received evidence of the substance of the confession, and finding thereby the objection was groundless, permitted the confession to be related before the jury. That was held not erroneous. In the course of the opinion Mr. Justice Dixon said: "Usually, indeed, the testimony to be considered by the judge on the points mentioned should be taken in the presence of the jury; for it will tend, not only to instruct the judge as to the admissibility of the confession, but also to enlighten the jury as to the credibility of the confession if admitted in evidence. But when, as here, the evidence tendered on the preliminary question of admissibility is such as would unfavorably affect the prisoner in the minds of the jury, and illegally if the confession were finally held to be not admissible, it certainly promotes the due administration of law for the judge alone to hear the evidence in the first instance. If he then holds the confession to be admissible, the same evidence, so far as it relates to the credibility of the confession, can be repeated before the jury. Such a course avoids, on one hand, the exclusion of a confession which has, in fact, all the essentials of legal evidence, although those essentials may not be susceptible of extrinsic proof, and, on the other hand, avoids the disclosure to the jury of inculpatory declarations of the prisoner which, in fact, lack some essential of legal evidence."
In the case at bar it is quite apparent that the discretion of the trial judge was properly exercised. Upon the whole case we discover no reason for reversing the judgment, and consequently it must be affirmed.
For affirmance — THE CHANCELLOR, TRENCHARD, LLOYD, BODINE, DONGES, BROGAN, HEHER, KAYS, HETFIELD, WELLS, KERNEY, JJ. 11
For reversal — None