State v. Cohen , 12 Gummere 5 ( 1922 )

The opinion of the court was delivered by

GmniERE, Chief Justice.

The plaintiffs in error were indicted under section 126 of the Crimes act (Comp. Stat., p. 1786) for willfully and maliciously setting fire to and burning certain goods and chattels contained in a store, in the town of Union, where they carried on business, with intent to prejudice, injure and defraud certain insurance companies specifically named in the indictment, and which had underwritten certain policies of insurance upon that property. At the close of the trial the jury returned a verdict finding the defendants “guilty of burning to' defraud insurance companies,” and judgment was pronounced against them. They thereupon sued out this writ of error, and now contend before us that the judgment of conviction should he reversed for certain reasons which will hereafter be considered.

It will be observed that the verdict does not find the defendants guilty of burning with intent to defraud the several insurance companies named in the indictment, and which had underwritten policies of insurance upon the property which liad been destroyed, but “insurance companies” generally. It is, of course, manifest that this verdict is at least informal; but whether it is subject to amendment so as to make it conform to the specific charge in the indictment, or whether it is unaihendable and constitutes harmful error, we are not called upon to consider, for the reason that no assignment of error or specification of cause of reversal is based upon this imperfection in the record. We have deemed it proper, however, to call attention to the situation, for a reason which will hereinafter appear.

The first ground upon which the plaintiffs in error contend that this judgment should he reversed is that the evidence adduced at the trial was insufficient to establish their guilt beyond a reasonable doubt, and that, this being so, it was error on the part of the trial court to refuse to direct a verdict in their favor. It was pointed out by the Court of Errors and Appeals, in State v. Jaggers, 71 N. J. L. 281, that when a case comes pp on a strict hill of exceptions error cannot be properly assigned on an exception to the refusal of the trial court to direct a verdict of,not guilty, for the reason that the motion is addressed to the discretion of the court. The present case, however, comes up under the one hundred and thirty-sixth section of the Criminal Procedure act, and we are required hy it to determine whether the plaintiffs in error suffered manifest wrong or injury in the refusal of the motion, notwithstanding that it was directed to the discretion of the court. State v. Contarino, 92 Id. 381. But, in doing this, as was pointed out in the cited ease, the only question is whether, upon the evidence as it stood when the motion was made, there was a case for the jury; and an examination of the proofs returned with the writ satisfies us that there was such a case, and that consequently the action of the trial court in refusing a direction did no manifest wrong or injury to the plaintiffs in error.

The other assignments of error and specifications of causes of reversal are directed at alleged errors in tlie charge to the jury and in rulings upon evidence. So far as the charge is concerned, our examination thereof leads us to the conclusion that the excerpts therefrom which are attacked the plaintiffs in error contain no erroneous statement of the law or recital of fact.

The rulings on evidence were legally unobjectionable, with one exception, and that relates to the testimony of John H. Shuster, an insurance adjuster, who was called as a witness for the defence. On his direct examination the witness testified that he had been employed hy Samuel Cohen to make an appraisal of the value of the stock in the store which had been injured or destroyed by the fire, and to arrange an adjustment of the losses with the various companies that had issued policies of insurance upon that stock. He further testified that he advised Mr. Cohen with relation to the procedure which must be followed by him in order to obtain a settlement of his losses from the insurance companies. Upon his cross-examination he was asked the following question.: “Did he say anything about'having made some monej’ on some other fire?” and he answered, “Yes.” The next question was, “What did he say ?” and the answer was, “He told me he had a fire in Trenton.” At that point defendants’ counsel interposed an 'objection on the ground that the testimony was incompetent, irrelevant and immaterial, and moved that the questions arid answers be stricken out for that reason, stating that his failure to interpose an objection at the time the questions were asked was because they wiere put in such a way that he could not hear them. The court overruled the objection, refused to strike out the questions and answers, and permitted the prosecutor of the pleas to follow this line of cross-examination up, and to obtain from the witness a statement that Cohen had told him that he had had a fire in Trenton and came out ahead $3,000 after he had had a sale. The trial court justified its ruling upon the ground that the plaintiffs in error had undertaken to introduce in evidence a part of a conversation had between the witness and Cohen, and that for this reason the whole conversation was a proper subject of inquiry.

It is conceded on behalf of the state that it would have been incompetent to have introduced proof of this earlier fire as a sixbstantive part of the state’s affirmative case. It was so held by this court in State v. Raymond, 53 N. J. L. 260 ; and the rale there laid down has been consistently followed by our courts whenever the question has since arisen. But it is argued that the rule is not applicable when the proof is furnished by the recital of a portion of a conversation between the defendant and a witness, some part of which has already been put in evidence by the defendant, himself. In other words, the contention is that the ground stated by the trial court as the basis 'of its ruling was sound.

It is undoubtedly tlie general rule that whenever the statement of a party is put in evidence, all that was said, hv him at the same time and upon tlie same subject-matter is admissible; and that the whole- of it should be taken and considered together. But, as was said by the court in Commonwealth v. Keyes, 11 Gray 323, 325, “there is an important limitation to the rule, in giving evidence of conversations or of oral statements and declarations. The proof in such case is to be confined to wlnit was said upon or concerning those matters which are made subjects of inquiry or investigation. Every remark or observation made upon those topics is to be received as competent evidence, because they may essentially modify the character and purport of the whole conversation, and vitally affect what might otherwise appear to be explicitly asserted or denied. But if, during the same- interview between the witness and the party, other subjects of conversation are introduced, remote and distinct from that which is the object of inquiry or investigation, it is obvious that whatever may be said concerning them can have no tendency to illustrate, vary or explain it. Everything pertaining to these additional and extraneous matters should therefore be rejected as irrelevant and useless.” Concretely stated, tlie rule applicable to tlie matter in hand is that, when a conversation upon a given matter is put in evidence, the opposing party is entitled to have all that was then said in relation, to that matter laid before the jury; but tlie door is. not thereby opened for the introduction of wl'iat was said in relation to an entirely different and unconnected matter, although in the same conversation. This limitation upon the general rule lias not been universally adopted, but it is generally followed both in the- courts of England and in those of our sister states. Wigm. Ev., § 2113 et seq.; 16 C. J. 571, and cases cited. We are content to adopt a limitation upon the rule, which has met with general approval, and conclude that the testimony objected to was erroneously admitted. That- it was harmful to the plaintiffs in, error is apparent, for it left the jury to infer that if the ¡ilaintiffs in error were benefited by tlie destruction of the property in Trenton and on that account had set fire to it, then they probably anticipated that they would he benefited by the destruction of the property which was the subject-matter of the indictment, and on that account probably in..tentionally set fire to it also. State v. Raymond, supra.

It is to be noted that the questions which called forth the incompetent testimony were not objected to when put; and some of our earlier decisions are to the effect that, under ordinary conditions, an objection not interposed until after the question is answered comes too late; but this rule of evidence has been, to some extent at least, abrogated by the decision of the Court of Errors and Appeals in State v. Young, 93 N. J. L. 396. It is there, held that where there is nothing in the record to indicate that counsel for the defendant delayed his objection for the purpose of speculating on. the answer, and where the trial judge treats the objection as timefy and calling for a ruling, which he makes, the judicial action in admitting the testimony, or in refusing to strike it out (as was the fact in the present case), brings the matter within the purview of section 136 of the Criminal Procedure act, as to the effect of the erroneous admission or rejection, of testimony. That decision is, of course, binding upon this court, and is directly aiDplicable to the case at bar.

The judgment under review will be reversed and the record remitted for a new trial.