alleged bias of witness, to ask if the indictment | rapher can hardly be held to absolute accuwas not jointly with the accused, and was not racy in the order, where objection and answer for the crime of abortion on the deceased, as may come together, especially in the case of such inquiry, if proper, should have been limited a biased witness. to the witness' relation to it.

7. CRIMINAL LAW

EVIDENCE PREJUDICIAL.

[1-5] We assume in favor of the state that 1169(1)-IMMATERIAL the answer came first. There is nothing, however, to indicate that counsel for the de

The admission of immaterial evidence is not fendant delayed his objection for the purpose necessarily harmless.

of speculating on the answer. Be that as it may, the trial judge treated the objection as timely and calling for a ruling, and he ruled, "That is proper." This was judicial action, within the rule of State v. Hummer, 81 N. J. Law, 430, 67 Atl. 294, and brings the case within the purview of section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), as to the effect of the erroneous admission or rejection of testimony. That the admission of the testimony was erroneous is clear.

9. WITNESSES 286(2)-LEADING QUESTION The witness was not only permitted to testify

ON REDIRECT EXAMINATION.

A question by the state of its own witness on redirect examination, asking if, an indictment for a different crime against the witness was not jointly with the present defendant, and was

to the contents of a public record, but also to the fact that the defendant had been charged with another crime from that for which he was on trial-a crime that had no tendancy logically to prove the substantive case of the state. It can hardly be supposed that proof even of the crime of abortion, cerKalisch, Parker, Heppenheimer, and Williams, tainly not proof of an indictment, tends to JJ., dissenting.

not for the crime of abortion, was leading and

erroneous.

prove negligence amounting to manslaughter in a surgical operation for a different purpose. It only proves that the state meant to Former opinion (103 Atl. have more than one chance for a conviction. The evidence bore only on the credibility of

Error to Supreme Court.
On rehearing.

173) reversed.

Robert H. McCarter, of Newark, for plain- the defendant. A mere charge of crime cantiff in error.

Wilbur A. Mott of Newark (J. H. Harrison, of Newark, on the brief), for the State.

not affect a witness' credibility, since, even if it take a soleinn form of an indictment, the accused is presumed innocent. It has even been questioned whether a plea of nolo conSWAYZE, J. The facts in the case and the tendere to an indictment made the fact adlegal questions presented are set forth in the missible as a conviction. State v. Henson, report in 103 Atl. 173. We need consider 66 N. J. Law, 601, 50 Atl. 468, 616. All the only one point. The defendant testified that argument in that case was wasted if the he discovered that there was a dead foetus in mere indictment was admissible for the same the womb and operated for its removal. The purpose. The matter is regulated by statute. woman's body was disinterred, and it was 2 C. S. p. 2217, § 1. The statute provides found that she had been eviscerated. The that the conviction of crime may be shown question was by whom-Dr. Young or the on the cross-examination or by the production undertaker, or perhaps some one else. The of the record thereof. The admission of the husband, who was the chief witness for the testimony was in violation of every branch of state, was called in rebuttal, and testified that the statutory rule. It was not proof of a conhe did not remove any of the organs from his viction; it was not shown on cross-examinawife's body. He then testified, in response to tion of the defendant, but on redirect examcounsel for the defense, that he was under ination of the state's own witness, whose indictment, and in effect that he had been credibility the state could not legally impromised by the prosecutor that, if he testi- | peach; and what was shown was not by the fied in this case for the state, he would be production of the record, but by parol tesrelieved from the indictment. Thereupon, on timony. redirect examination, counsel for the state asked if he was under indictment jointly with Dr. Young for performing a criminal abortion on his wife, and he answered in the affirmative. As the record stands, his answer preceded the objection of defendant's counsel. Whether this is a true report of the order of events or not is questionable, since a stenog

[6] It is said the evidence was permissible in explanation of the supposed bias of the witness, to show to what extent the indictment was related to the offense for which the defendant was then on trial. But if this consideration justified an inquiry into the charge of the indictment, the inquiry should have been limited to the witness' relation to

(108 A.)

Let the judgment be reversed, and the record remitted for a new trial.

it. The defendant had asked only as to the [ that he was state's evidence only emphasizes indictment of the witness and the promise of the error of the court in ruling that the eviimmunity to him. It was not competent for dence was proper. the state on redirect examination to ask if the indictment was not jointly with the present defendant and was not for the crime of abortion. This question was so leading that the prosecutor virtually was the witness. No doubt the question was so put for the very purpose of getting before the jury a suggestion which, however inadmissible as proof, might influence them in favor of the state.

PARKER, KALISCH, HEPPENHEIMER, and WILLIAMS, JJ., vote for affirmance.

KALISCH, J. (dissenting). The conviction of the plaintiff in error and the judgment pro[7, 8] It is said that the testimony was ob-nounced thereon in the Essex quarter sesjected to only as immaterial, and that, if im- sions was affirmed in the Supreme Court. material, it could not be harmful. This, how- The case was brought from the latter court ever, overlooks the real question. By making objection, no matter on what ground, judicial action was called for; the judge was bound to rule correctly. Instead of holding the evidence to be immaterial, he held it to be material, for he said it was proper. If immaterial, it was not proper. The effect of the ruling was harmful, for it would have been futile for counsel for the defendant to move to strike out. He was not bound to move to strike out, but might properly acquiesce in the ruling, and rely on redress of the error in the appellate court.

[9] It is, moreover, erroneous to say that immaterial evidence is necessarily harmless. Probably it was harmless in the cases referred to. But evidence entirely immaterial to the issue, which is what the objection means, may be very harmful. It would hardly be said that a man on trial for larceny could be proved guilty of murder, and the error passed over, if the objection was put solely on the ground of immateriality. The fact is objection on the ground of immateriality has a double aspect. It may mean that the evidence is a mere waste of time; it may

to this court for review, which resulted in an affirmance by a divided vote. Application was made for a rehearing which was granted. After a careful re-examination of the evidence in the case, and due consideration of the very able and learned argument of counsel of plaintiff in error, I have not been able to find any valid reason which would justify me to recede from my former conclusion that the judgment should be affirmed. The prevailing opinion states that the defendant testified that he discovered that there was a dead fœtus in the womb and operated for its removal. But this statement, for the sake of accuracy, needs to be supplemented by an undisputed fact-that the defendant, in performing the operation, found neither a living nor a dead fœtus, and hence that he was grossly mistaken in his prognosis. The defendant further testified that in performing the operation he drew down 16 inches of the intestines, which he cut off and threw into covered, after the woman was disinterred, a pail which stood beside him. It was disthat she had been eviscerated by some one. It was undisputed that the defendant was the person who performed the operation. Hence there was no one who had as great an interest as he to remove any vestige of malpractice or a criminal attempt at abortion, if any such trace existed.

mean that it is irrelevant. Which is the proper meaning depends on the case. The judge in the present case evidently took the objection in the latter sense, since he ruled that it was proper. The ruling was erroneous on the further ground that the question was leading, and a striking instance of the The ground upon which the majority opinharm that may be done by so objectionable ion reverses the judgment below is based upa question. The ruling that the evidence was on the following circumstances: Dr. Trusproper was an approval by the judge of a dell, a dentist, the husband of the deceased, mere suggestion of guilt by the state, without was called by the state in rebuttal of certain any proof, and must have been understood by testimony given by the defendant, which, the jury as meaning that it was of value as briefly stated, among other things, was that bearing on the present indictment, when in he did not go to the body of his wife and refact it was of no value, but was immaterial move any of the organs from it, and that he and irrelevant. That the defendant suffered did not know of any one who did. The crossmanifest wrong and injury is obvious. The examination by defendant's counsel was as jury heard the judge say the testimony was proper. If the defendant was guilty of abortion, his testimony about a dead fœtus, for which he was not responsible, was a lie, and his credibility was injuriously affected, if not destroyed. That the witness was, if there was in fact an indictment and the charge therein was true, an accomplice, and is all."

follows:

"Q. You are under indictment in this court? A. I am. Q. You have been promised, or your testified in this case, you will be relieved from counsel has been promised, by the state, if you that indictment, haven't you? A. I believe that is the understanding, is it not, Mr. Mott? That

Redirect:

"You are under indictment in this court jointly with Dr. Young for performing a criminal abortion on your wife, are you not? A. Yes, sir.

"Mr. McCarter: I object as immaterial. "The Court: That is proper."

For the defendant it is claimed that this testimony was illegally admitted. According

to the settled law of this state, a reversal is not justified for the improper admission or rejection of testimony, unless it appears that timely objection was interposed, and that there was a ruling of the court which was objected to, and that the admission or rejecjected to, and that the admission or rejection of the testimony was harmful to the defendant. State v. Hummer, 81 N. J. Law, 430, 67 Atl. 294; State v. Kubaszewski, 86 N. J. Law, 250, 92 Atl. 387; State v. Koettgen, 89 N. J. Law, 678, 99 Atl. 400. This court, in State v. Hummer, supra, construed the 136th section of the Criminal Procedure

there was not. The majority opinion declares that counsel of defendant did not sit by and speculate as to what answer the witness might make. The record is dumb on this topic. Whence, therefore, comes such a presumption? Neither the facts nor the law of the case justify it. The question put to the witness called for an admission by him of an indictment existing against him, charging him with a crime involving moral turtime on the redirect examination, and hence pitude, which was developed for the first it is not an unreasonable supposition that counsel for defendant might have speculated upon the probability of the witness refusing to answer the question, upon the ground that the answer tended to degrade or incriminate him, or that, if the witness admitted he was indicted for the crime of abortion, it would tend to discredit his testimony. Moreover, indicted with defendant for the commission if the witness confessed that he was jointly of an unlawful act, which resulted in the death of the deceased, thereby constituting "That the phrase 'admission or rejection of the crime of manslaughter, the status of the testimony' imports judicial action, and a judg-witness would be that of an accomplice, which ment will not be reversed for refusal of the trial would practically make his testimony valuecourt to strike out testimony elicited by a less against the defendant, unless corroborated in material points, and therefore the question was helpful to the defendant's defense. There was occasion for counsel to speculate on the answer the witness might make, and the fact that he did not object until after the question was answered, and then only upon the ground it was immaterial, leads me to the conclusion that counsel must be held to have waited to see what the answer would be before raising any objection.

Act as follows:

question to which no objection was made."

A plain reading of the record in the present case shows that there was no objection made to the question. It is suggested by the majority opinion, that though it appears in the present case that the question was answered before any objection was made, it might have been a faulty recording by the stenographer of what took place, or the witness might have answered before counsel had an opportunity to object; but what warrant there is in the record for any such surmises is not pointed out, and cannot very well be. If the record before us contains an accurate account of what took place, and it was not suggested in the court below that it does not, then the very absence from the record of any fact or circumstance, from which it could even be inferred that counsel was not afforded an opportunity to interpose an objection, raises a conclusive presumption that counsel had that opportunity, but failed to avail himself of it.

The prevailing opinion proceeds upon the theory that the statement by the trial judge, "That is proper," after the question was answered by the witness, and an objection for the first time had been interposed by counsel for defendant in these words, "I object as immaterial," was a ruling upon the admissibility of the question propounded, and within the scope of the decision of State v. Hummer. This is a marked and violent departure from the doctrine of the Hummer Case and the cases following it. According to the decision in the Hummer Case, the prime question is: Was there an objection made to the question

But it is said that the court treated the objection as timely, and calling for a ruling, and he ruled, "that is proper." But that can hardly be so. There was no question pending to be ruled upon by the court. The question had been answered by the wintess without objection. It is an unwarrantable assumption, in view of the sequence of events, as disclosed by the record, that the remark of the judge, after the question had been answered, indicated that he treated the objection of immateriality of the question put to the witness as if made in time, for in the first place, when the objection was made, there was no question pending which called for an answer, and therefore the situation was one that did not permit any ruling; and, in the second place, the remark made by the judge was, manifestly, mere comment on the statement made by counsel for defendant that the question was immaterial. If counsel for defendant had been surprised by the witness answering the question before counsel had had an opportunity to object, his great skill and knowledge in the trial of causes would have prompted him at once to have applied to the judge to strike out the answer of

(108 A.)

objection. This he did not do. So, when it was a trivial misdemeanor or for the grave counsel said, "I object as immaterial," he offense of murder. As the state was charged could not have meant anything else than that by defendant with having made a bargain it was immaterial whether or not the de- with the witness of which the indictment was fendant was jointly indicted with the witness the consideration, it was perfectly proper for for a criminal abortion. Suppose the trial the state to ascertain what the nature of the judge had remained silent, or even acquiesced consideration was. It is clear that the testiin counsel's objection that the testimony was mony was introduced by the defendant for immaterial; what warrant is there for an the purpose of establishing that the witness assumption that this was tantamount to a had an improper motive to testify, and had ruling upon the rejection or admission of the a bias against the defendant as a result of a question which had already been answered? promise by the state of immunity from proseAccepting the construction of this court cution under the indictment referred to. in the prevailing opinion that the trial judge, by his statement, "That is proper," ruled that the question was material, it cannot affect the logic of the situation as it exists here. Testimony may be material and relevant, and yet be incompetent. In the present case no objection was made that the question was incompetent, and therefore the court was not called upon to make a ruling in that regard. In order for the defendant to avail himself of any legal error, the record must show that the judicial action of the court on the admissibility of the question was promptly invoked, and, as it clearly appears that this was not done, it is too late to do it here. In State v. Hummer, 73 N. J. Law at page 717, 65 Atl. at page 250, Mr. Justice Garrison, speaking for this court, says:

"It does not appear that there was not an opportunity afforded to the counsel for the defendant to have made his objection earlier. The rule is established that counsel cannot take the chance of testimony making in his favor, and if it happens to be adverse then interpose his objection. There is nothing to show that the defense here was not apprised of the point upon which the witness was about to speak before his testimony relative to the sale to himself was delivered. The testimony being so in without objection, it cannot be said that the court erred in not striking it out."

Now it is apparent that it was a matter of considerable importance in determining the extent of the corrupting influence, if any, exercised on the witness, to ascertain whether the indictment was for a trivial offense, involving a money penalty only upon conviction, or for an offense involving imprisonment in the state prison. The witness could therefore be properly asked of what crime he stood indicted, and in order to show that he had no bias against the defendant on that account could very properly testify that the defendant was jointly indicted with him. For the state it might be said that both the witness and defendant were mutually interested in the outcome of the indictment, and that therefore the release of the witness from prosecution under it would not in its nature tend to create any feeling of prejudice and induce the witness to testify falsely. On the other hand, it could be reasonably argued that the fact the witness and defendant were jointly indicted, and the witness promised immunity from prosecution, converted the attitude of the mind of the witness into hostility toward the defendant. It seems to me, therefore, that not only was the question competent for the purpose indicated, but, even if it was incompetent, it was calculated to help the defendant to establish that the witness was hostile, which fact was beneficial to defendant, instead of harmful. The defendant introduced the testimony to establish bias on part of the witness, and he cannot be heard to complain that testimony on the part of the state, tending to enforce the charge of bias, was illegally admitted. The claim that the defendant was harmed by the question does not appear. If counsel thought the question might harm the defendant in some other aspect of the case, he was entitled to request the court to limit the application of the testimony to the bias of the witness, and to disregard it as bearing upon

The prevailing opinion inferentially concedes that the testimony was material. The ground of objection was that it was immaterial. The trial judge ruled that it was material. The majority opinion says that it was incompetent. There was no objection interposed upon that ground. It is said that the judge was bound to rule correctly. This he did when he did not accede to the proposition of counsel that the question was immaterial. The record does not show any objection to the question upon the ground of incompetency. The question was material the guilt or innocence of the defendant. In and competent for a certain purpose only. The defendant brought out new matter when he asked the witness whether there was not an indictment pending against him, from which he was to be relieved if he testified for the state. It is to be observed that there is nothing in the question or answer to indicace the nature of the indictment-whether

this regard what Gummere, C. J. said in State v. Hummer, 72 N. J. Law at page 330, 62 Atl. at page 389, is apt:

a result was to request the court to instruct the "The protection of the defendant against such jury as to the limitations of the evidence, and of the purposes for which it alone could be considered by them."

On appeal from the Supreme Court, in which the following per curiam was filed: "This is the defendant's appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury in the Warren circuit court. "The plaintiff's intestate was a switchman employed by the defendant company in its yards on the outskirts of Phillipsburg. On the occasion in question, about midnight, according to the proofs, he went, on the order of the yardmaster, to throw a switch to allow an interstate train to go through the yard on what is known as the 'main' or 'lead' track. The evidence permits of the inference that after he had placed the switch and as the interstate train was go

It is a matter of common legal experience that testimony may be competent for one purpose and incompetent for another. But this never shuts out the admission of the testimony because it may be harmful. As was said by the learned Chief Justice, the defendant can protect himself against such a result by asking the court to limit the testimony to the purpose for which it is competent. It is said that it was not competent to make proof of the indictment in the way it was done. Counsel for defendant brought out the fact that there was such an indictment. No objection was made to the competency of the manner of proof to establish the existing through, he stood some five feet away upon ence of the indictment. It may be properly said that, so far as that is concerned, the testimony went in by tacit consent.

We have heretofore strictly adhered to a compliance with the statutory rule not to reverse a judgment unless the error complained of prejudiced the defendant in his defense upon the merits of the case, and I do not see any good reason for a relaxation of this statutory mandate in the present case.

I therefore vote to affirm the judgment.

(93 N. J. Law, 447)

BRIGHT v. LEHIGH & H. R. RY. CO. (No. 25.)

the adjoining track, watching for hot boxes,
as it was his duty to do, when there was 'kicked.
down' upon this track on which he was standing
without warning to him.
an oil car which ran over him and killed him,

[] "The question is whether, under the proofs, the defendant company may be said to have been negligent in failing to give some sort of warning of the 'kicking down' of this car. We think that question must be answered in the affirmative. There was evidence of a custom to give warning, of which the defendant company had knowledge. Mr. Carroll testified: 'Q. When a flying drill was made in the yard, was it customary to warn in any way? A. Certainly, to have a man down there to shout or whistle, or to have a man on the front of the car.' This witness also testified that it was the yardmaster's orders not to 'kick any cars on No. 1 while 98 was pulling through the lead.' To

(Court of Errors and Appeals of New Jersey. the same effect is Mr. Purcell's and Mr. Black

Nov. 17, 1919.)

1. MASTER AND SERVANT

286(31)-NEGLIGENCE IN KICKING CARS WITHOUT WARNING

QUESTION FOR JURY.

man's testimony. The question whether there was a custom recognized by the company, and which was broken, was properly submitted by the trial judge to the jury. The defendant, however, complains that the rules of the com

warn. We do not so read the rules.

In an action for death of a switchman kill-pany expressly negative the idea of a custom to ed by a car "kicked" upon a track without warning, whether there was a custom recognized by the railroad company to give warning held to be a question for the jury.

Appeal from Supreme Court.

Action by Eliza Bright, administratrix of Harry Bright, deceased, against the Lehigh & Hudson River Railway Company. A judgment for plaintiff was affirmed by the Supreme Court, and defendant appeals. Affirmed.

the decedent had notice that the car which hit [2] "It is also claimed by the defendant that the decedent had notice that the car which hit him was coming down. Whether he had or had not seasonable notice was, we think, a jury question. It seems clear a verdict could not have been properly directed.

"We find no prejudicial error in the charge, nor in the refusal to charge, nor in the admission of evidence.

"The judgment will be affirmed, with costs."

George M. Shipman, of Belvidere, and Gilbert Collins, of Jersey City, for appellant. William C. Gebhardt, of Jersey City, for respondent.

PER CURIAM. The judgment under review will be affirmed for the reasons set forth in the opinion of the Supreme Court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes