Evening star., 1935-10-10


was a circumstantial case with the
evidence pointing to guilt from so
many directions as to leave no room
for a reasonable doubt.
But apart from this, for purpose |
of review, the element of reasonable
doubt is out of the case. The Ques- |
ton now is, not whether there was
reasonable doubt, but whether in the
language Of the statue (P. L. 1921,
p. 95D the verdict was against the
weight of evidence. On that issue the
test is whether it is SO clearly against
the weight of evidence as to give
rise to the inference that it is the
result of mistake, passion, prejudice or
partiality (State vs. KarpoWitz, 98
N. j. law. 546; State vs. Mosely, 102
Id. "a, 81; State VS.. Won de Linden,
105 Id 618. and State VS.. Treficanto,
1o6. Id. 344. $500.
Weight of Evidence
Declared With State.
We consider that the weight of evi-
dence was with the State
There was an application to this
court by defendant for a certiorari
based partly on allegation of diminu-
tion of the record and partly on
matters dehors the record. This was
in 10 subdivisions, indicated as A to
j. inclusive. A, B and C asked for the
opening by the attorney general. the
opening by the prosecutor to the jury
at the end of the evidence, and the
fnal summing up by the attorney
general. These were printed and
submitted and have been duly con-
Eidered
AS to the other matters, this court
in its discretion refused a certiorari,
with rule to take dispositions in sup
port Of them. They are as follows:
D. Cd The daily presence in court
OF the father of the dead child. This
fully appears passim in the record,
and Mr.. Reilly, in the course of his
summing up addressed Col. Lind
bergh by name. He was witness for
the State, and liable to be recalled
at any time. At no stage of the pro-
ceedings was it suggested that his
presence was detrimental to the, de-
5endant.
prominent persons. not connected with
the case, and their close proximity
to the jury" etc. No names are
mentioned and there is no suggestion
Of any action by the anonymous
prominent persons. Such a vague
claim merited no recognition, par
ticularly as it is elementary that the
proceedings must be public.
Holds Judge Curbed
Disorders in Court.
(e) 1.-THE repeated outbursts of
spectators in the court room during
session
That such outbursts should occur
is not unusual at the trial of case of
great public interest and In crowded
court room. There is again no Sug-
gestion that suitable measures to con-
troll it were not taken by the court.
The printed book shows that they
were taken, and that for some at
least of them defendants counsel
were responsible, not to mention the
defendant himself.
% Confusion and disorder reign
ing" in the court room, viz: running
about of messenger boys and clerks
employed by the press.
Without doubt there were messen-
gers going to and fro. Again, it was
inevitable. The press and public were
entitled to reports of the daily hap
penings, and it was quite proper for
the trial judge to afford reasonable
facilities for sending such reports.
During the trial the court seems to
have taken proper action on its own
motion to preserve order, and to have
responded properly to any suggestions
in that regard.
No motion for mistriel or for a new
trial on this or any other ground is
claimed to have been made.
Under paragraph F is repeated the
allegation of frequent exhibitions of
approval and censure or applause at
the testimony of various witnesses"
This has already been discussed
under E.
(g) Stories carried in the press and
radio 5roadcasts before the trial and
"conveyed to the general jury panel"
If the result of an important mur-
der trial is to be nullified by news
paper stories and radio broadcasts,
few convictions would stand. IN
States VS.. Overton, IS N. j. Law, 287,
already cited on another point, we
said, on the denial of a motion
to adjourn the trial because of
q newspaper report, "Of course, a
court cannot be put in error by the
mere publishing of newspaper reports.
While it may be that in cases of public
excitement the possible effect of news
paper articles upon the jury may
justify the court in its discretion in
adjourning a trial and summoning
another jury, it has never in This
State been ground of challenge to
O juror that he had read newspaper
reports relating to the case, so long
as he declares his ability to consider
the case on the evidence"
In that case there was motion for
o continuance before the trial really
began. In this, counsel go through
the trial to the end without a sugges-
tion of any such motion and make it
after conviction, sentence and writ
Of error.
In the Corrado case, 113 N. j. Law
at p. 81, already cited, there was an
uproar in the court, an assault and
fainting spell. The trial went on
without objection to verdict and SEN
tence. Three weeks after sentence
the defendant asked a new trial,
which was refused, and we held there
was no abuse of discretion, ''partic-
ularly as defendant was apparently
willing to proceed with the trial at
the time and take his chances of
verdict" We see no merit here on
the face of things.
(h) Failure to sequester the jury.
The petition contains certain speci-
fcations as to how the jury were
handled by the officers, where they
were lodged and fed during the trial,
nrA hnu fboyy mara Chlivnd RI fhrood