(108 A.) same identical assignments and causes were filed in this court. This is an improper method of assigning errors and causes for reversal on the removal of a judgment of the Supreme Court into this court, when the Supreme Court sat as a court of review on appeal or on certiorari, etc. A proper assignment would be that the Supreme Court erred in giving judgment for the defendant in error, instead of for the plaintiff in error, or that it so erred for one or more of the assigments of error and causes for reversal (grounds of appeal in sundry civil cases; reasons in certiorari cases) filed in the Supreme Court and brought up with the record. Even if the grounds taken in the Supreme Court were not mentioned, being in the record reviewed there, they would be arguable here under the objection that the Supreme Court erred in giving judgment against plaintiff in error. Of course, if an appeal were taken from a judgment of the Supreme Court, when that tribunal was the court of first instance, then all of the grounds of appeal relied upon would have to be taken to the proceedings in that court; but when first taken to the judgment of the Supreme Court as a court of review (on appeal or on certiorari, etc.), the only question is: Did that court err for one or more of the reasons assigned there? This case was submitted on briefs, and it is argued in the brief for the plaintiff in error that he suffered manifest wrong and injury in the sentence of the court. [2, 3] It will be recalled that the first count of the indictment charged larceny under the value of $20. This is a misdemeanor. Crimes Act (Comp. Stat. p. 1792) § 158. And the second count charged receiving stolen goods, knowing them to have been stolen, which is also a misdemeanor. Id. § 166. Neither of these sections fixes the penalty for the offense in each denounced, and therefore the penalty is that provided by Id. § 218, which declares that any person found guilty of a misdemeanor shall be punished by a fine not exceeding $1,000, or by imprisonment not exceeding three years, or both. [4] As already remarked, the conviction of the defendant was for larceny and receiving as charged against him, and the sentence of the court was that he be imprisoned for a minimum term of two and a maximum of seven years, with the costs of prosecution, and to stand committed until the costs were paid. The two counts in the indictment are repugnant, because a person cannot be guilty of stealing certain property and also of receiving that same property from another, who stole it, knowing it to have been so stolen. And even if they were not positively repugnant, the practice is to sentence on one count; the one containing the offense of the highest grade. State v. Dugan, 65 N. J. Law, 65, 46 Atl. 566. Here neither was higher than the other, judged by the penalty impos able. Yet the judge imposed a higher penalty than could be legally inflicted for a misdemeanor, and imposed a sentence of imprisonment for the maximum penalty for a high misdemeanor, seven years. Crimes Act, § 217. This error, however, may be corrected, either in this court or in the court below. The Criminal Procedure Act (section 144) provides that wherever judgment in a criminal case shall be reversed on account of error in the sentence, the court in which such reversal was had may render such judgment as should have been rendered, or may remand the case for that purpose to the court below. Comp. Stat. p. 1867. Comp. Stat. p. 1867. See State v. Huggins, 84 N. J. Law, 254, 87 Atl. 630. This question was not raised in the Supreme Court, and while ordinarily a court of last resort will not hear a party as to a question not raised below, nevertheless, where it goes to the jurisdiction of the subject-matter, or where a question of public policy is involved, it will. State v. Shupe, 88 N. J. Law, 610, 97 Atl. 271. It must be perfectly apparent that public policy forbids that a person should be deprived of liberty for a longer term than is provided by the law of the land. Therefore we will make proper disposition of this question, although a foundation for it was not laid in the trial court, and the question was not argued in the intermediate court of appeals. [5] The state's case was proved by testimony, which, if believed, and it was, showed that the brass was stolen by John Sebonas, who sold it to the defendant in circumstances which, to say the least, were such as would satisfy a man of ordinary intelligence and caution that it was stolen. The verdict, as above stated, was that the defendant was guilty as charged in both counts. This is exactly the same as a general verdict of guilty, which amounts to a conviction on all counts, and is sustainable on a single good count. [6] Under an indictment charging a man in separate counts with separate offenses, a general verdict of guilty is to be supported on a count of which the evidence shows the defendant to be guilty. State v. Huggins, supra. Therefore the conviction of the defendant is to be sustained for the crime of receiving stolen goods, knowing them to be stolen, as the evidence returned with the record clearly supports the conviction for that offense, and it is not to be reversed, unless legal error to the prejudice of the defendant on the merits intervened in some other respect; and it did not. The Supreme Court discussed these questions: That the indictment was for stealing and receiving brass journals, while the proof showed that they were broken into pieces; the charge of the court concerning guilty knowledge attributable to the defendant; proof of ownership of the stolen goods; the Appeal from Supreme Court. refusal of the trial court to permit an in- I though it is not the natural result of the interpreter to be sworn at the request of the jury. defendant-and resolved all against him. The Supreme Court concluded its opinion by asserting that the other matters referred to in defendant's brief, as grounds of reversal, were apparently not considered of sufficient importance by him to merit discussion, and that the court's examination of the case led them to concur in that view. In this we also concur. We have examined all of the grounds for reversal urged by the defendant's counsel in his brief, and are of opinion that they are invalid, and that the judgment should be affirmed. Besides adverting to the proper practice with reference to assigning error on a judgment of the Supreme Court when that tribunal has sat as a court of appeals, we have thought it necessary to discuss only the important question of the sentence, which is raised in this court for the first time. As in the Huggins Case, the prosecutor may move this court to render such judgment as should have been rendered, or to remand the case for that purpose to the Union quarter sessions, before which the conviction was had. 84 N. J. Law, 261, 87 Atl. 630. In the Huggins Case the judgment was affirmed, notwithstanding the error in the sentence. This amounted to an affirmance with a modification, and that will be the judgment in this case. (93 N. J. Law, 469). LUNDY v. GEORGE BROWN & CO. (No. 35.) Proceeding by Mary Lundy, under the Workmen's Compensation Act (P. L. 1911, p. 134), to obtain compensation for the death of her husband, Patrick Lundy, deceased, opposed by George Brown & Co., the employer. There was an award of compensation, which was affirmed by the Supreme Court (106 Atl. 362), and the employer appeals. Affirmed. M. Casewell Heine, of Newark, for appellant. Edward M. & Runyon Colie, of Newark, for respondent. PER CURIAM. This was an action in the Essex common pleas under the Workmen's Compensation Act, and resulted in a finding and judgment in favor of petitioner and against the respondent. On certiorari from the Supreme Court the judgment of the common pleas was affirmed, and the appellant, who was the prosecutor in certiorari, now appeals to this court. [1] In our judgment the case was rightly decided in the common pleas, and in the Supreme Court on appeal. Four grounds of appeal are stated in this court, when only one should have been, namely, that the Supreme Court erred in giving judgment for the defendant respondent, instead of for the prosecutor appellant. See State v. Verona (No. 24, June term, 1919) 108 Atl. 250. The fourth ground of appeal really comprehends the other three, and is that the Supreme Court erred in holding that there was evi (Court of Errors and Appeals of New Jersey. dence to support the finding of the common Nov. 17, 1919.) 1. CERTIORARI 70(3)—ONLY ONE GROUND OF APPEAL FROM SUPREME COURT. The only proper ground of appeal from a judgment of the Supreme Court, which has reviewed a judgment of a lower court on certiorari, is that the Supreme Court erred in giving judgment for the respondent, instead of the appellant. pleas that the death of respondent's decedent proximately resulted from an injury received in the course of and arising out of his employment. That was the question decided by the Supreme Court, which tribunal, after examination, observed that they thought there was evidence which fully justified the finding of the court below; that the medical testimony was in sharp conflict on the question whether the decedent died as a result of the injury or from an entirely independent cause; and they thought that Findings of fact by the trial court in a pro-an inference might be properly drawn from ceeding under the Workmen's Compensation the evidence that the nature of the decedent's Act may not be disturbed, where supported by 2. MASTER AND SERVANT 412-WORKMEN's COMPENSATION ACT; FINDINGS OF FACT CON CLUSIVE ON REVIEW. evidence. injury was of such seriousness as to greatly impoverish his system and predispose it to an infection of tuberculosis, of which there was not the slightest indication before the injury, and that it was difficult to escape the conclusion that the cause of death was an incident resulting from the accident. [2] On behalf of the appellant prosecutor it is urged that lay testimony is incompetent to establish the cause of death from symptoms and conditions resulting from injuries. (108 A.) The only proper ground of appeal in the Court of Errors and Appeals from a judgment of the Supreme Court, when that tribunal has sat as a court of review, is that the Supreme cessful, instead of the unsuccessful party, or Court erred in giving judgment for the sucthat it so erred for one or more of the grounds of appeal filed in that court and brought up with the record. But that question need not be decided, as | 2. APPEAL AND ERROR 362(2) GROUNDS the record discloses that there was medical OF APPEAL FROM SUPREME COURT. evidence tending to show that death resulted from tuberculosis which was superinduced by the condition resulting from the traumatism suffered by decedent. And where a trial court's findings of fact are supported by evidence, they may not be disturbed. Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203; New York Switch & Crossing Co. v. Mullenbach, 92 N. J. Law, 254, 103 Atl. 803. Appeal from Supreme Court. Action by Frank M. Bair against the Lehigh & Hudson River Railway Company. From a judgment of the Supreme Court (106 Atl. 421), affirming a judgment entered on a verdict of a jury in favor of plaintiff, the defendant appeals. Affirmed. Gilbert Collins, of Jersey City, for appellant. PER CURIAM. This is an appeal by the defendant from a judgment of the Supreme Court, affirming the judgment of the Warren common pleas entered on a verdict of a jury. [3] Where a workman receives personal injury from an accident arising out of and in the course of his employment, and disease ensues which incapacitates him for work, the incapacity may be the result of the injury, within the meaning of the (English) Workmen's Compensation Act, even though it is not the natural result of the injury. The question to be determined on a claim for compensation is whether the incapacity is in fact the result of the injury. Ystradowen Colliery Co. v. Griffiths, [1909] 2 K. B. 533. In a case where a petitioner's arm was broken while he was in defendant's employ, and the fracture properly united, but there developed an abscess upon the fleshy part [1, 2] The respondent objects that there of the thumb, which resulted in ankylosis, making the thumb useless, our Supreme court, and submits that there should thereare no adequate grounds of appeal in this Court held that the ankylosis of the thumb fore be an affirmance or a dismissal of the was an injury arising by accident out of appeal. The grounds of appeal in this court and in the course of the employment. New- are stated thus: The Supreme Court affirmcomb v. Albertson, 85 N. J. Law, 435, 89 Atl. ed the judgment; whereas, for one or more 928. And Mr. Justice Swayze, in writing of the grounds filed in the Supreme Court, the opinion in Liondale Bleach Works v. that court should have reversed the judgRiker, 85 N. J. Law, 426, at page 429, 89 Atl. ment. Counsel for respondent says in his 929, observed that the question of disease brief that each ground of appeal should confollowing an accident was considered in tain but one distinct proposition, citing Newcomb v. Albertson, supra. The decision Drummond v. Hughes, 91 N. J. Law, 563, there, rested on certain English cases, is to 104 Atl. 137. His proposition is sound, but the effect that an injury which follows an neither it nor the case he cites applies to the accident, and which, but for the accident, case at bar. The only proper ground of apwould not have happened, justifies the find-peal in this court from a judgment of the ing that the injury in fact results from the accident. The judgment under review should be affirmed, for the reasons expressed in the opinion of Mr. Justice Kalisch in the Supreme Court. Supreme Court, when that tribunal has sat as a court of review, is that the Supreme Court erred in giving judgment for the successful instead of the unsuccessful party, or that it so erred for one or more of the grounds of appeal filed in that court and brought up with the record. State v. Verona, (No. 24, June term, 1919), 108 Atl. 250. If the Supreme Court errs in giving judgment in a case in the class referred to, that is the one distinct error that it makes. The reasons why its judgment should be reversed (Court of Errors and Appeals of New Jersey. must be found in the record brought up from Nov. 17, 1919.) (93 N. J. Law, 446) BAIR v. LEHIGH & H. R. RY. CO. (No. 44.) 1. APPEAL AND ERROR 362(2) — DISTINCT PROPOSITION FOR EACH GROUND OF APPEAL. One ground of an appeal should contain but one distinct proposition. that tribunal. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (93 N. J. Law, 482) STATE v. SAMAHA. (No. 8.) (Court of Errors and Appeals of New Jersey ERROR. Nov. 17, 1919.) Atlantic county quarter sessions. The brief for plaintiff in error starts abruptly with to argue them. There is no abstract or statestating assignments of error and proceeds ment of the case prefacing the brief. The 1. CRIMINAL LAW 1129(2)—ASSIGNMENT OF rule of this court, taking effect at the November term, 1912, provides that the brief of the An assignment that the Supreme Court com- plaintiff in error, or appellant, shall contain mitted error in assuming that the case was in the order stated (1) a concise abstract or prosecuted on a strict bill of exceptions, in-statement of the case, presenting succinctly stead of under section 136 of the Criminal Pro- the questions involved in the manner in cedure Act, was not an assignment of error. which they are raised. The brief does not 2. CRIMINAL LAW 1105(2)—AUTHENTICA- comply with this requirement of the rule. TION OF RECORD ON APPEAL. The return of a judge to a writ of error out of the Supreme Court, certifying to the Justices the record and proceedings whereof mention is made in the writ, with all things touching the same, is a formal return upon the writ of error, and does not authenticate the record of the "proceedings had upon the trial," which may be brought up under Criminal Procedure Act, § 136. [1, 2] Strictly speaking, there are no assignments of error before us in this court. A paper was filed purporting to contain six such assignments. The first one states that the Supreme Court committed error in assuming that the case was prosecuted on a strict bill of exceptions, instead of under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863). This is no assignment of er 3. CRIMINAL LAW 1129(3) - ASSIGNMENTS ror; but, assuming it to be, it is invalid. OF ERROR. Legal error alone would be sufficient to overturn a judgment; hence it is improper to refer in assignments of error to alleged errors as "fundamental error" and "manifest error." 4. CRIMINAL LAW 1129 (3)-ASSIGNMENT OF ERROR. The only proper assignment of error in the Court of Errors and Appeals, where the Supreme Court has reviewed a decision of a lower court, is that the Supreme Court erred in giving judgment for the defendant in error, instead of the plaintiff in error, as any errors before the Supreme Court, properly assigned and taken up from such court with the record, would be arguable and determinable there, or it may be assigned that the Supreme Court erred for one or more of the assignments of error filed in such court and brought up with the record. The Supreme Court commenced its opinion with the assertion that the judgment of the court below was before the judges on a strict writ of error and bills of exception. That is true. In the return of the judge of the Atlantic quarter sessions to the writ of error out of the Supreme Court, which is brought up here, he certifies to the Justices the record and proceedings whereof mention in the writ is made, with all things touching the same. This is the formal return upon a writ of error, and does not authenticate the record of the proceedings had upon the trial, which may be brought up under section 136. State V. Clark, 75 N. J. Law, 473, 68 Atl. 114. [3] In several of the other purported assignments of error in this court the alleged errors are characterized, as in the second, "This is flagrant error," and in the third, 5. CRIMINAL LAW 770(2)-MATTER AUTHOR-"manifest error." Of course, this characteri IZING INSTRUCTION MUST BE LEGALLY ES- A party to an action has no right to have the court charge something which he conceives "important" to be shown, as matters as to which a party is entitled to a charge must be legally essential either for or against him. Error to Supreme Court. Abraham Samaha was convicted of obtaining money under false pretenses, the conviction was sustained by the Supreme Court (104 Atl. 305), and defendant brings error. Af firmed. Irving Paul Parsons and John J. Crandall, both of Atlantic City, for plaintiff in error. Edmund C. Gaskill, Jr., Prosecutor of the Pleas, of Atlantic City, for the State. PER CURIAM. This case comes up on error to the Supreme Court, which reviewed the conviction of the plaintiff in error in the zation is improper. Legal error alone would be sufficient to overturn the judgment, no matter how flagrant or manifest the error might be. Such characterizations have no place in proper pleadings. [4] The only proper assignment of error in this court would have been that the Supreme Court erred in giving judgment for the defendant in error, instead of the plaintiff in error, under which any errors before the Supreme Court, properly assigned, and brought to this court with the record, would be arguable and determinable here, or it could have been assigned in this court that the Supreme Court erred for one or more of the assignments of error filed in that court and brought up with the record. State v. Verona (No. 24, June term, 1919) 108 Atl. 250. The Supreme Court dealt properly with the assignments of error in that tribunal, and we affirm the judgment of that court upon its deliverance, with this exception: The (108 A.) defendant made a request to the trial court | 2. INTOXICATING LIQUORS 238(5)-QUESas follows: "The court is asked to instruct the jury that it is important for the state to show that the bulletin in the indictment does not correspond with the text of the authority of the book that it was taken from. They have especially alleged that that is not like what the author authorized them to put in, and they have not introduced any evidence on that subject at all, therefore I ask that the court will instruct the jury to that effect. (Instruction refused and exception sealed.)" This alleged error is made the ground of the fourth assignment of error in the Supreme Court. That court dealt with the subject in its opinion in these words: "Nor does it appear that the defendant sustained any harm from the refusal of the court to tell the jury 'that it was important for the state to show that the bulletin in the indictment does not correspond with the text of the authority of the book it was taken from,' in the face of the admission of counsel that it did not correspond with the text of the book he had in his possession, and the testimony on part of the state that Professor Kunz never wrote any book on mineralogy." [5] Certainly the defendant was not harmed in the refusal to charge the request, and that for the reasons stated by the Supreme Court; but there is another and a paramount reason why the instruction should not have been given, and it is this: A party to an action has no right to have the court charge something which he conceives to be important to be shown. He has no right to have the particular matter charged, unless it is legally essential, either for or against him. A matter may be important, in the judgment of the party, without being legally essential. The judgment under review will be affirmed. (93 N. J. Law, 478) STATE v. BOWEN. (No. 30.) TIONS WHERE AND BY WHOM SOLD FOR THE In a prosecution of defendant, "the 'steward' of the so-called 'Elite Social Club,' conducted in 'the haymow of a livery stable,' for sale of liquor without a license, defense being that sales were not made within the state but that orders were filled by a brewing combut that orders were filled by a brewing company outside the state, questions of where and by whom sales were made held, under the evidence, for the jury. 3. INTOXICATING LIQUORS 238(5) - DIRECTION OF VERDICT NOT AUTHORIZED. In prosecution for sale of liquor without a license, where testimony of witnesses on their main examination authorized finding of repeated sales, court was not authorized to direct verdict for defendant, though a contrary inference might have been drawn from witnesses' statements on cross-examination or the statements of other witnesses. On writ of error to the Supreme Court in which the following per curiam was filed: "The defendant below was convicted in the Cumberland quarter sessions of the illegal sale of liquor. He brings up the entire record of the trial, and assigns error upon his bill of exceptions. Upon examination of the points thus raised and argued we find no reason to disturb the judgment. [1] "The first point to be considered is that the third count of the indictment, upon which alone the defendant was convicted, does not charge an indictable offense. But this is not so. The count charged, in substance, that the defendant, on a certain day and on divers other days between that day and the taking of the inquisition, in a certain house kept and maintained by him in the city of Bridgeton, in the county of Cumberland, habitually and unlawfully sold in quantities of one gallon certain spirituous, vinous, malt, and brewed liquors, which are specified, to certain persons named, and to divers other persons unknown to the grand jury, without having a license for that purpose. That is sufficient under section 74 of the Criminal Procedure Act. C. S. p. 1844; State v. Terry, 72 N. J. Law, 375, 61 Atl. (Court of Errors and Appeals of New Jersey. 148; Parker v. State, 61 N. J. Law, 308, 39 Nov. 17, 1919.) 1. INTOXICATING LIQUORS 215-INDICTMENT SUFFICIENT TO CHARGE ILLEGAL SALE. Count of indictment charging that on a certain day and divers other days, between that day and the taking of the inquisition, in a certain house kept and maintained by him, the defendant habitually and unlawfully sold in quantities of one gallon certain liquors to named persons without having a license for that purpose, was sufficient under Criminal Procedure Act (2 Comp. St. 1910, p. 1844) § 74. Atl. 651. [2] "The next point is that a verdict should have been directed for the defendant. We think not. The defendant was the 'steward' of the so-called 'Elite Social Club,' conducted in the 'haymow of a livery stable.' There was evidence from which the jury could and did find that the place was under the defendant's management and control. He carried the key to the place where the liquors were kept. He supplied the liquors upon the moneys therefor being deposited in a box. "The defendant did not testify, nor did he produce any evidence. He claims that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |