On error to the Atlantic County Court of Oyer and Terminer.
For the plaintiff in error, Samuel Morris.
For the state, Louis A. Repetto, prosecutor of the pleas.
The opinion of the court was delivered by
PARKER, J. The plaintiff in error was convicted of murder in the first degree. The deceased was a Mrs. Schaaf, in whose house the defendant below had roomed for several months before her death. The defense was insanity. The proof that defendant had done the killing was not seriously controverted, and the defendant was not sworn in his own behalf. It becomes unnecessary therefore to go into any detail touching the proof bearing on the commission of the act, except as incidental to the points of law argued. They may be grouped under three heads: 1. Admission of certain photographs in evidence. 2. Attacks on the judge's charge. 3. Weight of evidence on the issue of insanity.
The evidence showed that the body of the woman was found in a small trunk which was inside of a big trunk, which has been shipped by express from Atlantic City to Philadelphia. The body was absolutely identified, and it was undenied that death had been caused by strangulation, the rope used being around the neck of the victim. A series of photographs showing the trunks and the body was put in evidence over objection and the introduction of these pictures is attacked in several specifications.
An examination of the stenographic transcript, however, shows that the objections to them are not well founded. When the first was offered, counsel said: "I object. I cannot see the purpose. The testimony is that there was a white
woman in there, and they have testimony, I suppose, to identify her. This is simply a gruesome picture that will answer no purpose."
The fact that counsel could not see the purpose naturally does not make the photograph incompetent. We think it was both relevant and competent, as a question of identification and part of the evidence to establish the corpus delicti. It is true that there was other testimony as to whose body it was and how death had been caused, but the fact that this evidence was cumulative does not render it incompetent, nor does the fact that it happens to be gruesome and injects an element of horror into the case. State v. Aeschbach, 107 N.J.L. 433, 435. It is now argued that the photographs were incompetent because "not the best evidence," and from the case of Goldsboro v. Central Railroad Co., 60 Id. 49, a Supreme Court case, counsel quotes the casual observation, that photographs "are never admitted but as secondary evidence." They are not so treated in Wigm. Ev., but are classed under what he calls "non-verbal testimony" like maps or diagrams. Sections 789 et seq. It is true, of course, that they must be verified by testimony as correctly depicting the originals that they portray, but it is not suggested that such verification was lacking. Furthermore, and finally, the "best evidence" objection was not made at the trial. Several similar photographs were admitted over the "same objection" and the further objection that they were irrelevant and immaterial. We think they were both relevant and material; and that they were properly admitted.
2. We pass to the attacks on the charge, which are based on the seventeenth and eighteenth assignments of error and causes for reversal. Technically these are utterly futile as specifying any particular part of the charge claimed to be erroneous, and but for the fact that this is a capital case and that we deem it proper, though in nowise obligatory on us, to deal with them in favorem vitoe, they would not be considered for a moment. State v. Blaine, 104 N.J.L. 325.
The seventeenth assignment and specification ...