Case of State of New Jersey against Joseph A. Ash. On appeal from Third Criminal Court of Newark.
Mr. John P. Manning for State.
Mr. Andrew Van Blarcom for Defendant.
STICKEL, Jr., J.: The defendant-appellant was found guilty in the Third Criminal Court in the City of Newark, Judge Horace C. Grice presiding, for driving an automobile while under the influence of liquor, in violation of Section 1, Chapter 67, of the Laws of 1913, a supplement to the Disorderly Person Act, and he now appeals to this Court.
The first point urged as a ground for reversal of the conviction is that "at the close of the case there was a reasonable doubt as to the applicant's guilt; that the State had not sustained the burden of proof, and that the weight of the evidence favored the appellant."
It is to be doubted whether this Court has any power to review the evidence at all, in view of the Laws of 1895, Page 197, section 7, 3 Comp. Stat., p. 3993, providing: "That it shall not be necessary to set forth in said conviction [convictions in Police Courts of first-class cities] the whole or any part of the testimony upon which such convictions is had," but, assuming it possesses such power, it cannot extend beyond the point of determining whether there was any evidence before the trial Court to support its finding. See Sec. 39, Laws of 1915, p. 411, Supp. Comp Stat., p. 490; State v. Lynch, 3 N. J. L. Journal 45; Lyons v. Stratford, 43 N. J. L., 376; Orange v. McGonnell, 71 N. J. L. 418. No power to weigh the evidence rests in this Court, and, if it did, I would be unwilling to say, after a reading of the evidence in this case, that the trial Court was wrong in its conclusion of facts; that it should have disregarded the officer's testimony and that of Doctor Mitchell, and believe the story of the defendant and his friend; or even that the Court must have or should have entertained a reasonable doubt of the defendant's guilt on the whole case. The trial Court saw the witnesses, had the benefit of the atmosphere of the trial, witnessed the demeanor of the witnesses on the stand, their manner of testifying, and, consequently, was in a better position to determine questions of fact than this Court is, relying, as it must, upon a paper record.
There was ample evidence, if believed, to support the charge. The police officer testified that he saw the defendant driving the car, smelled alcohol on his breath, took him to Doctor Mitchell, the police surgeon, to whom the defendant admitted that he had been drinking, and who found him under the influence of liquor, and on the stand the defendant told of having had two drinks of whiskey.
The point stressed--that the police officer's claimed identification of the defendant as the driver on South Orange Avenue is so improbable and impossible as to make his whole story increditable incredible and unbelievable--presents a question of fact and argument peculiarly the province of the trial Court, but, in any event, the fair intendment from his testimony, it seems to me, is that either because of the speed of the auto in question, or because of the auto chasing the car in question, with the occupant waving his hand to the officer, he was attracted to the automobile in question, caught a glimpse of the driver, turned around, followed the car, ordered it to stop, saw the defendant while thus endeavoring to bring the car to a stand-still, and then saw him step out of the car and away from the driver's seat.
The next point urged is that the Court erred in sustaining an objection to this question addressed to Officer Moffatt by counsel for the defendant: "How many conferences have you had about this case this morning with Captain McRell, or Doctor Mitchell?" After this question was asked the Court said: "Is that material?" "Mr. Manning: I do not see that this is material. We have a right to prepare our case. I object." The Court: "Objection sustained. I think you [counsel for the defendant] probably talked about your case with your client." No objection was made to the Court's ruling by counsel for the defendant, no exception taken thereto, and no effort made to point out the materiality or relevancy of the question, or that it was but the foundation for some legitimate attack upon the credibility of the witness. In that posture of affairs the overruling of the question was in the discretion of the Court and was harmless. State v. Panelli (N. J.) 79 Atl. 1064.
The third and last ground urged for reversal is the action of the Court in permitting Doctor Mitchell to answer the following question over objection of counsel for defendant and exception duly taken: "And, in your opinion, would you say his condition to be such as to prevent his driving a car?"