On error to the Monmouth County Court of Oyer and Terminer.
For the plaintiff in error, Charles H. Walker.
For the state, Jonas Tumen, prosecutor of the pleas, and J. Victor Carton, assistant prosecutor.
The opinion of the court was delivered by
PARKER, J. The plaintiff in error was convicted on an indictment for murder, and brings this writ of error. The case is before us on a strict bill of exceptions, there being no
certificate of the entire record of proceedings at the trial. In fact, the testimony is not contained in the printed book, but only the charge of the court, defendant's requests to charge, and four exceptions to portions of the charge. At the argument it was pointed out to counsel that no exception appeared to have been signed or sealed by the trial judge, and the court permitted him to procure a sealed bill of exceptions and submit the same after the argument. This has been done: and we now find not only the exceptions as printed, but also exceptions to the court's refusal to charge the first, second and third requests to charge. With respect to these last, it is sufficient to say that they are not assigned for error, and therefore are not properly before us. State v. Swiller, 91 N.J.L. 345; State v. Nixon, 86 Id. 371, 373; State v. Grace, 98 Id. 341. Moreover, they are not argued before us, the entire argument and all the assignments of error being predicated on what the judge said, and not on what he refused to say.
Taking up the assignments seriatim as argued: the first quotes some remarks of the court about assigning counsel to defend the accused. There is no exception to support this. The same is true of the second and third relating to character evidence and the remarks of the court on that subject. As to the fourth, the exceptions prayed, as now before us, read as follows:
"I respectfully except to that part of the judge's charge as refers to the burden being on the defendant to prove his alibi." And: "The defendant further excepts to the statements of the court regarding an alibi, upon the ground that the burden of proving that the defendant was at the scene of the murder never shifted from the prosecution."
When the language of the court, as quoted in the fourth assignment of error, is read, it will be clear that there is nothing therein contained which can be construed to amount to an intimation to the jury that the burden of proving an alibi is on the defendant. The language is as follows: "The testimony of the state -- I don't think I should review any
evidence but the testimony of the state, as near as I can recall the purpose of the testimony is, and I want you to use your own ideas as to the purpose of the testimony and your own understanding as to what the evidence was, but it seems to me the state has endeavored to prove to you by testimony that this defendant, Fearce, and the companion with him, Jackson or Litman according to what name he was, did hold up or attempt to rob and, in fact, did rob Potts, and in that robbing Potts was killed. Of course the defendant absolutely denies it, said he had nothing to do with the murder and was not there. I may have my own idea -- in fact, I have a pretty strong idea as to the facts in this case, but I don't intend to express them to you. That is his defense."
It is further argued in respect to this extract that the court was in effect directing a verdict of guilty. The language supports no such interpretation. It was comment, and of the kind expressly recognized as legitimate in this state. ...