On error to the Supreme Court, whose per curiam is printed in 8 N.J. Mis. R. 98.
For the plaintiff in error, Augustus S. Dreier (Winfield S. Angleman, of counsel).
For the defendant in error, Abe J. David.
The opinion of the court was delivered by
BODINE, J. The plaintiff in error was indicted by the Union county grand jury charged with the unlawful and felonious killing of Edwin Fitzpatrick. He was convicted of manslaughter and sentenced to the New Jersey state prison. A certificate of reasonable doubt being granted, he was admitted to bail pending a review of the conviction. On writ of error to the Supreme Court, the conviction was affirmed and thereafter the judgment by appropriate means was removed here.
The case was before the Supreme Court on strict writ of error and bill of exceptions, and also under the one hundred and thirty-sixth section of the Criminal Procedure act. The assignments of error are eleven in number, and properly present the fundamental error complained of.
On the evening of October 17th, 1928, Fitzpatrick, a young
motorcycle policeman, was killed on the state highway leading to Rahway, by reason of a violent contact with an automobile operated by Oliver, the plaintiff in error. The state adduced at the trial conflicting medical testimony as to the intoxication of Oliver at the time of the occurrence. One physician pronounced him intoxicated because his breath smelled of liquor, and further because he seemed excited and his gait was unsteady. He, however, made no physical examination of the accused. Another physician, making an examination an hour later, pronounced negative the tests he applied for intoxication.
The testimony indicated that Oliver, who had a crippled arm, was driving a Studebaker sedan on the right-hand side of the highway. The state's first witness to the fact, a man driving close behind the plaintiff in error, testified: " Q. And the car that was immediately ahead of you -- Mr. Oliver's car, was in the place where it should have been on the side of the center of the road? * * * A. I should say yes, to that. Q. And Oliver did not zigzag as he went up the street, did he? A. He did not. Q. What did you see when you looked at the front of the Oliver car? A. I saw a motorcycle underneath it, and the radiator all smashed in. Q. Where was the motorcycle with reference to the front of the automobile? In other words, had the Oliver automobile passed over it? A. No, it had not."
No testimony adduced indicated either an unusual method of operation of the car or the driving of the same beyond the right side of the road. Marks upon the road showed that the brakes had been applied with sufficient force to mark the roadway. Several witnesses testified that shortly after the occurrence Oliver walked to a garage to call aid and appeared intoxicated. One witness smelled liquor in the car. There was on the whole case perhaps sufficient evidence for the jury.
A witness called in behalf of the defendant was driving in the opposite direction from Oliver at about the time of the casualty. He testified: "I was traveling in the direction of Rahway at about twenty miles an hour, and all of a ...