On writ of error to Morris County Court of Oyer and Terminer.
For the plaintiff in error, Joshua R. Salmon.
For the state, Orville V. Meslar, prosecutor of the pleas.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. The plaintiff in error was indicted for the murder of his wife. The trial resulted in a verdict of guilty of murder in the first degree, and the present writ of error is sued out by him to test the validity of the judgment entered upon that verdict.
The proofs submitted on the part of the state showed that the plaintiff in error married his wife in October, 1918; that they lived together as husband and wife until the latter part of the year 1929; that the wife then took a position as nurse in the family of one Byrnes, not far from the home in which before that she and her husband had been living, and that she occupied this position until the end of March, 1930, when the killing took place. The proofs further showed that two or three days before the shooting the defendant purchased cartridges to be used in a revolver that he owned; that he called up his wife on the telephone a few days later, and asked her to meet him, which she declined to do, telling him that she was through with him; that about half-past seven on that evening he went to the Byrnes home, knocked at the back door and asked to see his wife; that she was notified of his call, and went outside the door to talk to him; and that as she came out he shot her three or four times,
killing her. The act of killing was admitted by the defendant, but he attempted to avoid responsibility for it by submitting testimony tending to show that he was insane at the time when the killing took place.
The first contention submitted to us as a basis for reversing the conviction is that the court erroneously admitted in evidence certain photographs taken of the body of the deceased as she lay on the ground near the rear door of the Byrnes house, where she fell when she was shot. The argument in support of this contention is that their admission injected an element of horror in the case, which would naturally excite, embitter and inflame the jury against the defendant. Assuming this to be true, it does not render the admission of the photographs illegal. Carrying the contention to its logical conclusion, a court of first instance, on the trial of an indictment for murder, is barred from admitting proof of any material fact which would tend to inject an element of horror into the case, and so embitter and inflame the jury against the defendant, although without such proof the state would be unable to support the charge laid in the indictment. We conclude that this contention is without merit.
Next, it is argued on behalf of the plaintiff in error that the court erroneously refused to permit a witness named Eichlin, who was called by defendant's counsel, to testify to his opinion of the mental condition of the defendant at the time of the killing. This witness was not an expert on insanity, but he had been a schoolmate of the defendant many years before, and had met him once in a while thereafter, but very seldom, and apparently after they ceased to be schoolmates had not had any association with him except of the most casual kind. We consider that, in view of these facts, the testimony offered was properly excluded. Proof that the defendant when he was a schoolboy was not entirely normal, if that was the fact, affords no basis for the expression of an opinion by a non-expert witness of his mental condition many years afterward. The testimony of a non-expert witness depends for its admissibility upon his knowledge of the defendant's mental condition resulting from personal association
with him at the time of the killing or for a reasonable period preceding it, and this was not the situation in the present case.
The next contention on the part of the plaintiff in error is that the trial court improperly stated in the presence of the jury that what, in his opinion, would justify the admission of testimony of a non-expert witness as to the mentality of the defendant. What the court said was in explanation of the ruling excluding the testimony of the witness Eichlin. A mere statement to counsel of the reasons upon which a judge bases his decision does not constitute legal error, even though the reasons are unsound. The error ...