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namely, that, where a clear legal obligation versal" upon the representative of the state to perform an act has not been shown, the within a specified time. And the case of performance of such act will not be enforced State v. Young, supra, holds: “The clear imby the mandatory process of the court. The plication is that the review is to be confined legal obligation of the defendant in the pres to matters of which the state is apprised, eient case being, to say the least, doubtful, the ther by assignment of error or specification writ of mandamus will not issue.

of causes." In the present case no specificaThe rule to show cause is discharged. tion of causes of reversal has been served.

It is further provided by section 140 of the

criminal procedure act that "it shall be law(69 N. J. L. 206)

ful to take a general exception to the charge STATE V. SHUTTS.

of the court to the jury without specifying (Supreme Court of New Jersey. Feb. 24, any particular ground or grounds for such 1903.)

exception and without specifying what porLARCENY-INDICTMENT-PROPERTY SUBJECT

tions of said charge are excepted to and it -ERROR-REVIEW.

shall be the duty of the judge to settle a bill 1. An indictment for the larceny of chickens,

of such exception and to sign and seal the if intended to be under section 158 of the act

same to the end that the same may be refor the punishment of crimes (P. L. 1898, p. 837) should contain allegations sufficient to

turned with the writ of error to the court show that the offense is not that defined in sec having cognizance thereof." And section 141 tion 162 of the same act.

provides: “It shall be lawful where such gen2. Whether, since the enactment of section 162, Crimes Act (P. L. 1898, p. 839), chickens

eral exception has been taken to assign are the subject of larceny under section 158, any error or errors of law upon any porCrimes Act (P. L. 1898, p. 837), quære. Upon tion of the charge so excepted to." The case a writ of error to review a judgment in a

before us does not disclose any general excriminal case the court will only consider such matters as have been called to the attention ception to the charge upon which the judge of the state either by assignment of error or settled a bill of exception or signed and sealspecification of causes; and a general excep ed the same. tion to a charge is only available when error is assigned upon the objectionable portions.

Under the criminal procedure act (Gen. St. (Syllabus by the Court.)

p. 1154, § 170 [Laws 1894, p. 246]) the return

to the writ is to be of the indictment, with all Error to court of quarter sessions, Mon

things touching the same, including the enmouth county.

tire proceedings had upon the trial, and is so Frank Shutts was convicted of larceny, and

certified by the trial court; and the court, brings error. Reversed.

on hearing, was required by this statute to Argued before GUMMERE, C. J., and VAN

look at the entire record of the proceedings, SYCKEL, GARRISON, and GARRETSON,

including the testimony and the weight thereJJ.

of, and was authorized to reverse the judgWesley B. Stout, for plaintiff in error. John ment and grant a new trial where it appearE. Foster, for defendant in error.

ed from the entire record of the proceedings

that the plaintiff in error sustained manifest GARRETSON, J. This case is before the wrong or injury. Roesel v. State, 62 N. J. court upon writ of error, and it seems to be Law, 240, 41 Atl. 408. assumed by the plaintiff in error that it is The criminal procedure act of 1898, in secso under section 136 of the criminal procedure tion 136, supra, omits the words "or upon the act of 1898 (P. L. 1898, p. 915), which pro evidence adduced upon the trial," so that since vides that "the entire record of the proceed that act the court upon review does not pass ings had upon the trial of any criminal cause upon the weight of the evidence, and only may be returned by the plaintiff in error upon its admission or rejection, or upon the therein with the writ of error,” etc.; but an direction of the judge as to its legality, and examination of the printed book fails to dis that only when brought before the reviewing close any return by the judge other than the court in the manner indicated above. ordinary and formal return to the writ of We are therefore confined in this case to a error.

consideration of the record of the judgment, The proper practice upon a return made in and to such bills of exception as were duly accordance with section 136 is indicated by signed and sealed at the trial. the Court of Errors and Appeals in the case There were 13 assignments of error, as folof State v. Young (N. J. Err. & App.) 51 Atl. lows: (1) Because the judgment was given for 940.

the state, and against the said Frank Shutts, By section 137 of the same act it is pro- when by law of the land the judgment aforevided that, "where a plaintiff in error shall said should have been given to the said Frank elect to take up the entire record with his Shutts. (2) Because the trial judge refused writ of error as herein provided, he shall to quash the indictment. (3) Because the said specify the causes in the record relied upon court admitted the testimony against said defor relief or reversal and shall not be con fendant, which was illegal and contrary to fined to his bill of exceptions or required to law. (4) Because the said court refused to assign error thereon and he shall serve a copy admit testimony on the part of the defendof the causes so relied upon for relief or re ant, which in law he should have done. (5)

Because the testimony was such that it show The cåse was tried upon the theory that the ed that the defendant was not guilty, and the Indictment was found under this section of verdict should have been accordingly. (6) Be the statute. Evidence was produced as to cause the judge charged the jury contrary to the value of the chickens taken. The judge law. (7) Because the judge charged the jury charged the jury as follows: "This defendant contrary to the proof in the case. (8) Because io indicted upon an indictment charging bim the court refused to charge the jury as re with grand larceny, petit larceny, and a count quested. (9) Because the jury found the de charging him with receiving those goods, fendant guilty of grand larceny, to wit: “The knowing them to have been stolen. Under defendant is guilty of grand larceny as he this indictment, and under certain circumstands charged in the indictment.” (10) Be stances which we may or may not find, be cause the said indictment is not signed by the could be convicted of either one of those offoreman of the grand jury. (11) Because the fenses, or entirely acquitted. In the first verdict or inding is against the clear weight place, you should convict him if you believe of evidence. (12) Because the verdict or find him to be guilty of grand larceny. Grand ing is contrary to the evidence and the law. larceny consists of a theft of goods worth as (13) Because, for divers other reasons, the much or more than $20 in value. You could said judgment is erroneous and contrary to convict him of petit larceny, which consists of law.

a theft of goods in value less than $20, or you The fifth and eleventh assignments of error could convict him of receiving those goods are upon the findings of the evidence, and with a guilty knowledge that they had been cannot be considered. The eighth is not stolen, and in that case it makes no difference founded on any request to charge with re whether the goods were worth $20 or less. spect to any matter whatever. The tenth ex The first thing for you to determine, if you ception is not well taken; the indictment determine that he is guilty beyond a reasonaneed not be signed by the foreman of the ble doubt, is what he is guilty of. Were grand jury. State v. Magrath, 44 N. J. Law, these chickens worth twenty dollars? If they 227. The sixth, seventh, and twelfth bave were, and he should be convicted, you should no exceptions or specifications to sustain say he was guilty as charged in the indictthem, and are not in themselves specifications ment. If in your verdict you say this: 'He of causes for reversal. The third and fourth stole those chickens, but they were not worth are to the admission and rejection of testi $20,' then you should say he was guilty of mony, and an examination of all the excep petit larceny. You understand, if you find tions to such admission and rejection fails to that the value of the goods was $20, then you disclose any error in the rulings of the trial should say he was guilty as charged in the court. The first, second, ninth, and thirteenth | indictment; and if less than $20, then you exceptions are such as will raise any questions should say that he is guilty of petit larceny. appearing on the face of the indictment and Now, suppose you find that he did not steal, the record of the judgment.

but received the goods knowing them to have The plaintiff in error was indicted for that been stolen, then you will simply say that you he "seven bags of chickens of the value of find him guilty of receiving the goods, but he twenty dollars of the goods and chattels of would not be guilty of stealing." J. A. S. then and there being found unlawful The plaintiff in error claims that chickens ly did steal, take and carry away." The in are not included within the terms “money or dictment also contained a count for receiving personal goods and chattels” used in section stolen goods. The verdict of the jury was 158, supra, because of the provisions of sec“that they find the defendant guilty of grand tion 162 of the crimes act (P. L. 1898, p. 839), larceny as he stands charged in the indict which is as follows: "Any person who sball ment." The judgment was "that the defend carry away or unlawfully appropriate with ant be confined in the state's prison at hard intent to steal any turkey, goose, duck, chicklabor for the term of two years."

en or other domestic fowl by whatever name Section 158 of the crimes act (P. L. 1898, p. known or designated, the property of another, 837) provides: “Any person who shall steal shall be guilty of a misdemeanor.” The inof the money or personal goods and chattels dictment attempts to follow the ordinary comof another

shall be guilty of a mis mon law form for larceny, which is the of. demeanor if the price or value of the article, fense defined in section 158. Whether, since property or thing be under twenty dollars; the enactment of section 162, chickens are no and if the price or value of the article, prop longer the subject of larceny under section erty or thing be of or above twenty dollars 158, need not now be decided. It may be shall be guilty of a high misdemeanor.” suggested, however, that possibly section 162

The penalty for a high misdemeanor, as pre- applies only to domestic fowls when alive, scribed by section 217 of the crimes act (P. and that when killed and a subject of merL. 1898, p. 854), is a fine not exceeding $2,000 chandise they may be included under the de. and imprisonment not exceeding seven years. nomination of personal goods and chattels The penalty for a misdemeanor, by section in section 158. If chickens are the subject of 218 (P. L. 1898, p. 854), is a fine not exceeding larceny under section 158, the indictment $1,000 and imprisonment not exceeding three charging that defense should contaic words years.

of sufficient description to exclude the appli

19

cation of section 162. Under that view this 2. Under the "Act directing the mode of enindictment would be defective in that par.

tering judgments on bonds with warrants of atticular. The words of criminal import in sec

torney to confess judgments" (1 Gen. St. p.

172), a warrant of attorney for confessing judg. tion 162 are "carry away or unlawfully ap ment that is included in the body of a promispropriate with intent to steal"; the words sory note is not void. The act is limited by its used in the indictment are “steal, take and

title so as merely to prohibit the use of such a

warrant of attorney in the entry of a judgment carry away." We consider, however, that the

in the courts of this state. indictment is defective in the description of (Syllabus by the Court.) the property taken, whether regarded under the 158th or the 162d section.

Action by William H. Shelmerdine against The indictment found is not sufficient to

Charles K. Lippincott. Demurrer to replica

tion overruled. charge the offense set out in section 162, be

Argued November term, 1902, before GUM, cause it is clearly a charge under section 158. It should contain allegations sufficiently clear

MERE, C. J., and VAN SYCKEL, FORT, and

PITNEY, JJ. to apprise the defendant that he is charged with the offense under section 162, and not un Edward Dudley, for plaintiff. Henry I. der section 158. The words in section 162 are Budd, Jr., for defendant. “carry away or unlawfully appropriate with intent to steal," and these are not equivalent PITNEY, J. The declaration sets forth to “steal" in section 158. It should also be al that on a certain date before the commenceleged in the indictment that the chickens car ment of this suit, in the court of common ried away or appropriated with intent to steal | pleas No. 4 for the county of Philadelphia, are domestic fowl, so as to distinguish them in the state of Pennsylvania, by the confrom other fowl called chickens, which are not sideration and judgment of that court, the domestic fowl. There should be no allegation plaintiff recovered against the defendant a of value, because the offense does not depend judgment for $51,556.28, with costs, which upon the value.

judgment still remains in that court in full The indictment found is not sufficient, as an force and effect, in no wise satisfied, reversindictment for larceny under section 158, be-ed, or annulled, and that the plaintiff has cause, the carrying away or appropriating not yet obtained execution thereof; whereby with intent to steal of chickens having been an action bath accrued, etc. Appended to made an offense by section 162, if it should the declaration is a bill of particulars purbe claimed that chickens of certain sorts, or porting to set forth a copy of the exempli. in certain conditions, are still subjects of lar fied record of the judgment upon which the ceny under section 158, the sort or condition declaration is founded. should be specified, so that the defendant may By section 123 of the practice act (2 Gen. be informed under which section he is ac St. p. 2554), it is enacted that, if any writ. cused.

ing whereof a copy is annexed to the dec. We consider, moreover, that the description laration be referred to in the body of the "seven bags of chickens of the value of twen

pleading as so annexed, the copy shall cure ty dollars" is defective, whether regarded un any defect by reason of the insufficient set. der the 158th or 162d section. Chickens are ting forth of the same in the body of the usually regarded by number or weight. The pleading. Whether a judgment is such a expression used in indictment convey, no idea writing as comes within the purview of this of the number or quantity of chickens taken. section is a question not now raised, for The property taken cannot be described by the declaration before us does not refer to what it is enclosed within, because that gives the judgment record as annexed, and in the no idea of the extent of the goods taken. absence of such a reference it is well settled Wharton Cr. Pl. & Pr. (8th Ed.) $ 206. If the that a bill of particulars is no part of the indictment is for larceny, the value of each leading, and resort cannot be had to it article should be stated. Wharton, supra; for the purpose either of enlarging or limState v. Stimson, 24 N. J. Law, 9; Stephens iting the averments of the pleading. Harri. v. State, 53 N. J. Law, 249, 21 Atl. 1038. son v. Vreeland, 38 N. J. Law, 366; Brown The judgment of the sessions should be re

V. Warden, 44 N. J. Law, 177; Metzger v. versed.

Credit System Co., 59 N. J. Law, 340, 36 Atl. 661; Snyder V. Merchants' Ins. Co., 59 N.

J. Law, 69, 34 Atl. 943; Voorhees v. Barr, (69 N. J. L. 82)

59 N. J. Law, 123, 35 Atl. 651; Melick v. SHELMERDINE V. LIPPINCOTT.

Foster, 64 N. J. Law, 394, 45 Atl. 911. (Supreme Court of New Jersey. Feb. 24, Among other pleas filed by the defend1903.)

ant is one setting up “that he was not servPLEADINGS-CONFESSION OF JUDGMENT

ed with process in the suit, if any there WARRANT OF ATTORNEY.

were, in which the said judgment, if any 1. Under section 123 of the practice act (2

there be, was obtained; that he did not Gen. St. p. 2554), a writing annexed to a appear to said suit in person or by attorpleading, without being referred to iu the body of the pleading as so annexed, cannot be re

ney; and that he was not resident nor sorted to for the purpose either of enlarging or

present within the Jurisdiction of the court limiting the averments of the pleading.

in which the said judgment was rendered

at any time pending the said suit, or when facts of the case, would enable the defendant judgment was rendered therein." To this to present the defense relied upon, if there plea the plaintiff replies: “That the said be doubt of his right to do so under the judgment was duly entered without suit, by plea of pul tiel record that has already been confession, according to the laws of the filed. state of Pennsylvania, under and by virtue The defendant further insists that, beof a power of attorney, upon a certain prom cause the warrant of attorney for confessing issory note made by the defendant to the judgment was included in the body of the plaintiff, and to be performed in that state, promissory note, the warrant of attorney was in manner and form as follows.” And the void under section 1 of our "Act directing replication then sets forth in full the prom the mode of entering judgments on bonds issory note in question, included in the body with warrants of attorney to confess judgof which is an authorization for any attor ments." 1 Gen. St. p. 172. But in the case ney of any court of record of Pennsylvania of Hendrickson v. Fries, 45 N. J. Law, 555, or elsewhere to appear for the defendant the Court of Errors and Appeals held that, and enter judgment against him for the since under our Constitution the title of a sum specified in the note, with costs of statute is not only an indication of the legissuit, with or without declaration, and with lative intent, but is also a limitation upon release of errors. To this replication defend the enacting part of the law, it follows that ant has interposed a general demurrer, and this act has no effect with respect to any in support thereof relies upon the well-es object that is not expressed in the title, and tablished rule that notwithstanding the must therefore be construed to be a mere Federal Constitution, a judgment rendered in regulation of the practice in our own courts. a state court has no force or effect beyond It was therefore held that the act in question the territory of the state, if it appear that did not prohibit the making in this state of a the defendant was not served with process valid power of attorney for use in other in the action wherein the judgment was ren states, although it may be embodied in a dered, did not appear therein, and was not bill or other instrument for the payment of within the jurisdiction of the court. But money, but only prohibited the use of such the replication avers that the judgment now a power of attorney in the entry of a judgin question was duly entered without suit, ment in the courts of this state. by confession, in accordance with the laws The position of the present defendant is of the state of Pennsylvania, and under and certainly not strengthened by the fact that by virtue of the power of attorney that is the power of attorney here in question does set forth in the replication. As this instru not appear to have been made in New Jerment authorized any attorney to appear for sey. It will be presumed to be valid until the defendant and enter judgment against the contrary appears. him, the replication as a whole sufficiently The plaintiff is entitled to judgment on avers that the judgment was duly entered by the demurrer. an attorney under the authority thus conferred. The defendant relies upon the case of

(69 N. J. L. 57) Grover & Baker Co. v. Radcliffe, 137 U. S.

MCLEAN V. ERIE R. CO. 287, 11 Sup. Ct. 92, 34 L. Ed. 670. But in (Supreme Court of New Jersey. Feb. 24, that case it appeared that the bond and

1903.) warrant authorized any attorney to enter ACCIDENT AT CROSSING-CONTRIBUTORY NEGthe judgment, and it appeared that the

LIGENCE-QUESTION FOR JURY

-INSTRUCTIONS. judgment was entered against him in Penn

1. Where the evidence, when the plaintiff sylvania by the prothonotary, without serv

rests, leaves the contributory negligence of the ice of process or appearance in person or by plaintiff in doubt, the case is for the jury. attorney, under a local law permitting that

2. In referring to photographs, the judge said to be done. The question under considera

to the jury: "I have admitted these photo

graphs in evidence. They are put before you. tion, therefore, was not whether the power You ought to look at them with a good deal of of attorney authorized any attorney to make caution. I suppose all of you know that a the appearance, but whether it authorized photograph of natural scenery is more or less

misleading as to distance, on account of what the judgment to be entered without such

the artist would call perspective or want of appearance. That is a very different case perspective. Do not be misled by the photofrom the present, for the averments of the graphs in an estimate of distance. In that rereplication now under criticism include a

spect, it is fair to say that they are unavoid

ably misleading. It is the nature of photograstatement that the attorney appeared. It

phy.” This was not an erroneous statement, any inference to the contrary can be drawn but one within the legitimate right of comment from what appears upon the transcript of

by a trial judge.

3. It is for the jury to say whether the testijudgment as contained in the bill of particu

mony of a witness, having an equal opportunilars, the point can only be taken upon the ty to hear and whose hearing is equally good, trial, for the reason already given. A re and who testifies that he did not hear the joinder in proper form, denying that an at blowing of a whistle or ringing of a bell, nottorney appeared for the defendant, or con

withstanding he listened, shall or shall not be taining other averments appropriate to the 1. See Negligence, vol. 37, Cent. Dig. $$ 286, 296.

over

giveu equal credit with the testimony of a wit Both Verhagen and Arlington testify, as disness, similarly situated, who testifies that he

tinctly and specifically as human testimony did hear. (Syllabus by the Court.)

can be given to a negative fact, upon the

question of whether the statutory signals Error to circuit court, Essex county.

were given. Both of these witnesses affirm Action by Lauchlin McLean against the that they did not hear the bell ring or the Erie Railroad Company. Judgment for plain whistle blow, and it seems impossible to betiff and defendant brings error. Affirmed lieve that Arlington would not have heard

Argued November term, 1902, before the them, in view of the fact that he states that CHIEF JUSTICE and VAN SYCKEL, FORT, he was familiar with the train, knew it was and PITNEY, JJ.

coming, was looking for and expecting it,

and heard the rumble, but did not hear any C. & R. W. Parker, for plaintiff in error. Samuel Kalisch, for defendant in error.

bell or whistle, and of the further fact that he was undoubtedly listening for the warn

ing to the plaintiff, who was about to pass FORT, J. This was an action for damages

the track in a position which, he alleged to have resulted from an injury thought, was one of danger, and against caused by the train of the defendant com which, he states, he was endeavoring to get pany running into a wagon of the plaintiff, near enough him to warn him. The question in which the plaintiff was, at the crossing of negligence in the company and contribuof the said company at or near Soho, in tory negligence in the plaintiff were clearly Essex county.

jury questions, under the evidence in the There was a motion to nonsuit, and also a case, and were rightly left to the jury by motion to direct a verdict for the defendant, the trial judge. both of which motions were refused by the Another assignment of error was as to the learned trial judge. A careful examination court's statement in the matter of photoof the testimony leads to the conclusion that graphs which had been introduced in evi. there was no error in either of these re dence by the defendant. On that subject, fusals. There was proof in the case in cor the court said: “I am asked to mention the roboration of the testimony of the plaintiff subject of the photographs to you. I have by two witnesses-one, Eugene Verhagen, admitted these photographs in evidence, and called by the plaintiff, and the other, Edward they are put before you. You ought to look Arlington, called by the defendant,that the at them wild a good deal of caution. I supplaintiff had stopped his wagon within 25 pose all of you know that a pbotograph of feet of the crossing. Mr. Verhagen testifies natural scenery is more or less misleading as that he was on foot passing in the same to distance, on account of what the artist direction along the highway as the plaintiff; would call perspective or want of perspective. that, as he drew near the track, the plain You can hardly judge accurately of distance tiff's wagon was standing within about 25 from a mere inspection of the photographs. feet of the track, and that he passed by him So far as concerns the trees and shrubbery as he stood there, and crossed the track for that were there at the time, you must reseveral hundred feet before he heard the member that the photographs were taken on sound of wbat undoubtedly was the accident. the 14th of January, 1901, about three weeks, Mr. Arlington testifies that he was passing or a little more than three weeks, after this along the highway on a bicycle; that he was accident.” Then follows a statement by the going down toward the railroad crossing; judge as to the allegations in the proof of that the wagon was just ahead of him, in the change in trees, underbrush, etc.; and wbat he describes as "semidarkness." He then he concludes as follows: "That is a says he heard the rumble of the train, and question for you to judge, under the testiwas intent on finding out whether this wag. mony in this case; but do not be misled by on would cross before the train got to the the photographs in an estimate of distance. crossing or not, and then says: “Just as I In that respect it is fair to say that they thought it was past the crossing, the train are unavoidably misleading. It is the nature flashed on the crossing and the crash came." of photography.” This statement of the On cross-examination, he was asked whether court is not only legitimate comment on the the wagon stopped, and said he could not evidence, but is a statement of that which say, and, being asked why he could not say, is common observation and knowledge. There gave as his reason, “On account of the dark is much that is misleading in photographs in ness.” But his statement, which was quite the matter of distance, in what the learned detailed and accurate, is entirely consistent trial judge well calls "perspective" or "want with the theory of the plaintiff that the wag of perspective.” It depends almost entirely on had stopped before he came up, or was upon the viewpoint from which a photograph actually standing at the time he first saw it. is taken, as to the effect that is given to If the statement of Mr. Verhagen is to be the surroundings at the point shown thereon. accepted, it is quite apparent that at the time We see no reason for reversal in these statebe crossed the track, when the plaintiff's ments. wagon was at a standstill, the train of the Another alleged error was on account of defendant company was not within sight. the refusal of the trial judge to charge the

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