Evening star., 1935-10-10
COURTS DECISION ENTIRELY REJECTS HAUPTMANNS PLEA

raised. Throughout the lengthy sum-
nation it was at one juncture. and one
only. that the defense counsel inter-
posed with an objection that the State
counsel was going outside the evi-
dence. We shall return to this pres
emily. With that exception the four
lawyers representing defendant and
employed by him, said nothing by way
Of protest.
The pertinent rule in this State
is well settled, and was enunciated
in this court by the late Chancellor
Walker in State VS.. Terry, where he
said:
The rule in this State, undoubtedly,
is, that where counsel, in summing
up to the jury, goes outside Of the
testimony and makes appeals based
upon facts which have not been
proved, but rest upon his unsupported
assertions, the party injuriously af-
fected must, in order to be relieved,
move the trial judge to order the re-
marks stricken out and to charge the
jury that they should be disregarded.
An objection only to the illegal re-
marks does not require the trial judge
to strike them out of his own motion,
and unless counsel requests their elm
ination no ground for review is laid"
In State VS.. Baker, 68 N. j. law,
10, a Supreme Court case, opinion
by the late Chief Justice Gummere,
it was held: Where the testimony,
introduced at the trial of an indict-
ment, clearly shows the guilt Of the
accused, a statement made by the
prosecutor of the pleas, in his sum-
ming up to the jury, that verdict
of acquittal would be a miscarriage
of justice, affords no ground Of ex-
ception"
Wilentz Attacks
On Prisoner Upheld.
In State vs. Lang, rs i'd. /, at page
7, the Supreme Court held the prose-
cutting attorney. in view of the evi-
oence, to be within his privilege in
describing the defendant as "a mon
ster in his passions, licentious in his
desires, beast in his love, brutal when
thwarted and cowardly when caught"
The case came to this court on
writ Of error I'D, P. 502), and the
judgment was affirmed for the rea-
sons stated in the Supreme Court
opinion (see P. 5l3) except on the
point of challenge to the jury. On
that point alone it was carried to
the Supreme Court OF the United
States and again affirmed (209 u S.,
467-521, Ed. 894D. The abstract of
counsel's brief shows that no other
point was even suggested.
In State VS.. Biango this court held
that improper remarks by prosecu-
tor in the absence of timely objec-
ton and request for action by the
court are no basis for reversal either
on strict writ Of error or under Sec
ton 1856, supra.
In State VS.. Mccormack. 90 i'd, 287,
the prosecutor, in summing up, said:
Would I, district attorney. having
delved in this case for months, urge
this prosecution if I did not believe
what the prosecutrix said was true?"
The Supreme Court said this was i'm
proper, but pointed out that when
defendants counsel objected and asked
that the remarks be withdrawn, the
prosecutor at once withdrew them
and asked that they be disregarded.
This was in accord with the practices
outlined in State VS.. Terry. The
Mccormack case came to this court
and the judgment was affirmed on
the opinion of the Supreme Court,
81 N. j. law, 262.
In State VS.. Corson. 108 i'd, II,
the prosecutor during his summation
made a prejudicial remark not justi-
fed by the proofs. Counsel for de-
fendant asked the court to withdraw
a Juror and award a mistrial, but
the Supreme Court pointed out the
rule in State VS.. Terry and said that
in such a case the party injuriously
affected must, in order to be relieved,
move the court to order the remarks
stricken out and to charge the jury
that they should be disregarded, and
this course not having been taken, no
reversal could be had. The Judgment
was affirmed in this court, 109 i'd, 144,
on the opinion of the Supreme Court,
except as to one point not here
relevant.
Crime Is Termed
Worst Of Century.
In very recent case Of Berger VS..
United States, gu. S.-79 L. Ed,
667; SIS Supt. Ct, 629, is relied on
for reversal on this phase of the
present case. But as We read the
opinion, the reversal Is predica.ed on
grossly improper conduct by the dis
trict attorney plus weak case on
the evidence, which latter is far
from being the situation here.
1t may be well further to note that
the leading counsel for the defense in
the instant case, who summed up to
the jury, anticipated the Attorney
General when he remarked at the
outset that this is the crime of the
century, and it is the worst crime and
the lowest type of crime ever COM
to my knowledge, according to
any of the books I have ever read"
And as he was closing: II have tried
to be honest believe this man
is absolutely innocent Of murder"
We are far from setting the seal of
approval on any statement on the
personal beliefs of counsel on either
side as to the fact of guilt or inno-
cence. But it is unnecessary to dis
cuss the matter in detail, as we deem
the rule in State VS.. Terry applicable,