Evening star., 1935-10-10
PART OF HIS DUTY
!. TO DISCUSS DATA
Charge to Jury Held Favor.
able to Defense if at
All Biased.

All SIQoSNs
(Continue6 From Thirteenth Pageo
N ]. Law. 36. where we held that in
that case the absence of an exception
would not bar a reversal and placed
this on grounds of public policy.
However. q glance at that case will
show a fundamentally different sltu-
alton In that the trial court in the
conduct of murder case diSregarded
one of the most fundamental rules OF
the court procedure in such cases, viz,
that the jury should be sequestered
during the trial. and in fact permit
ted the members of the jury to dis
perse to their homes This was in
deed a case of public policy, but does
not require the extension of the rule
to what may be described as ordinary
trial error.
We deem Point III therefore to be
without substance.
Point " is challenge in another
form to the summing up by the at
torney general and read as follows:
The defendants constitutional
rights under the fourteenth amend
ment of the Constitution of the United
States were contravaned by the sum-
nation and material variance OF
theory"
This is said to be in violation of
the Fourteenth Amendment. Without
repeating here what has already been
said under the first point, We conclude
that there was no such infringement
of the Federal Constitution.
Venue Issue Fails
To Bring Reversal.
Point v is headed the venue was
improperly laid in Hunterdou County
instead of Mercer County"
What is meant is that the indlct-
ment, if any, should have been found
in Mercer County and tried there. 1t
will be remembered that the child
when stolen was in Hunterdon, and
that the body was found in Mercer.
Counsel, of course recognized the pro-
visions of section SO of our Criminal
Procedure Act" &C. S. 1897 that where
there is a felonious striking in one
county, and death therefrom occurs IN
another county, the indictment may
be found in either.
Parallel with this is section 60, COW
ering cases where felonious striking Is
without the State and death HI the
State. The case of State VS.. James,
e6 N. J. Law, 1872, was case covered
hy section SO. Under section so we
have the recent cases of State VS..
Lang 108 N. J. Law, 98, and State
vs.. Frazer, In the same volume at
page 504.
The gist of the argument, both
orally and in the brief, was and is
that there was no evidence to justify
the jury in a finding that there was
any felonious striking in Hunterdon
County. The court charged that the
fact that the child's body was found
in Mercer County raises presumption
that the death occurred there. But
that, of course. is rebuttable pre-
sumption and may be overcome by
circumstantial evidence"
Clearly the jury were entitled, In
view of the evidence. to find that
some sort of battery was committed
in Hunterdon when the child was
taken from it's bed. and from that
evidence might also find that the
blows on the head, causing death.
we're inflicted in Hunterdon. 1t
was not necessary to show death in
Hunterdon. Proof of felonious Strik-
ing in that county. causing death
that occurred. was sufficient. And we
consider that of such striking there
was sufficient proof. even though OF
o circumstantial character.
Opinion Finds Evidence
OF Common Law Burglary
Point VI is stated thus: There
was no proof of the common law
crime of burglary, and the court
enormously charged the statutory
crime
This, it will be observed, contains
two propositions, Both are incorrect.
There was proof of common law burg
larry, and the court did not charge
what the thief calls 'the statutory
crime" |. e., section 131 of our
crimes act, c. s. 1897
AS to the f1rst-a burglar, says
Blackstone a Blk. 229) following
Coke, is "he that by night breaketh
end entereth into a mansion house
with intent to commit felony In
] Russ Crimes 785, burglary is de-
fined as "a breaking and entering the
mansion house of another in the night
with intent to commit some felony
within the same, whether such feloni-
Gus intent be executed or not"
In State vs. Wilson, l N. j. Law
Coke 439. Chief Justice Kinsey, charg-
ing a jury defined burglary as 'the
breaking and entering in the mansion
house of another with the intent to
commit some felony therein, and that
In the night time
There was proof to meet all these
conditions breaking and entering
and into mansion house, in the night
time-and with intent to commit a
felony.
Only the last merits any particular
discussion. The intent is to be gath
cred from what was done viz: The
stealing of the child and its clothing,
as charged by the trial judge. Kid
naping was no felony at common law,
but larceny was a felony, whether
grand or petit a Blk, GAL, ,299 ct seq).
1t is suggested that there was no
proof of value of the clothing and
hence that proof of larceny was in
compete, but we see no merit in this.
The matter of value was material in
trying an indictment for larceny-and
perhaps also in framing such indict-
ment-because of the greater punish
ment in cases of grand larceny, but,
as Blackstone says ubi supra, grand
and petit larceny are 'offenses which
are considerably distinguished in their
punishment, but not otherwise" and
in treating of burglary the distinction
IS not even alluded to.