On error to the Supreme Court, whose per curiam is printed in 7 N.J. Mis. R. 986.
For the plaintiff in error, Harold Simandl.
For the defendant in error, Joseph L. Smith, prosecutor, and Joseph E. Conlon, assistant prosecutor of the pleas.
The opinion of the court was delivered by
WALKER, CHANCELLOR. The plaintiff in error was convicted in the Essex Quarter Sessions on an indictment charging assault and battery upon, and criminal abuse of, Sally Bigams, a female child over the age of twelve years and under the age of sixteen, and was sentenced therefor. The entire record of the proceedings had upon the trial was taken up to the Supreme Court on error, under section 136 of the Criminal Procedure act, and that court affirmed the conviction in an opinion per curiam.
Only one question is assigned for error here. In the brief submitted on behalf of the plaintiff in error it is stated that the "error complained of deals with the erroneous admission of evidence by the trial court and was laid under assignment and reason No. 5 in the court below," and that was argued by counsel. In the brief submitted for the state it is said that the "only assignment argued by plaintiff in error is
assignment 5, which brings for error the rebuttal testimony of Margaret T. Dugan on behalf of the state." The point, among others, was argued in the court below and that entitles plaintiff in error to argue it here.
The crime was committed on the evening of May 21st, 1927. The plaintiff in error, testifying in his own behalf, denied the assault. He was asked on cross-examination:
"Q. Before Sally left your employ, you went to Miss Dugan, being referred to her by the missing persons bureau, and you told Miss Dugan that your wife had left you, that she was running around with a colored man, and that you wanted to make a complaint against her? A. I didn't."
In rebuttal the state called Miss Dugan and, over objection, she was permitted to testify that she saw the plaintiff in error, at police headquarters, in the missing persons bureau on July 26th. And she was asked the following question:
"Q. Did Mr. Lerman on that occasion tell you in effect that his wife had been absent from the home for two months or more, that she had absented herself on frequent occasions, that she was running around with a Negro, and did he ask you if he could make a warrant out and have a warrant made out for her arrest?"
The question is the question which is made the subject of the assignment and reason number 5, and it was objected to, and the last part, namely, that she was running around with a Negro, and did not he ask you if he could make (take) a warrant out and have a warrant made out for her arrest, was stricken out as not germane, and the witness asked: "Did he not tell you that?" (meaning the first part of the question as to whether Lerman told witness that his wife had ...