On writ of error to the Court of Quarter Sessions of Middlesex county.
For the plaintiff in error, David I. Stepacoff.
For the defendant in error, Charles M. Morris, prosecutor of the pleas, and George S. Applegate, assistant prosecutor of the pleas.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
PORTER, J. The plaintiff in error was indicted and convicted of incestuously having carnal knowledge of the body of his daughter, Mary Masnik, on February 8th, 1939, and at other times. Mary Masnik testified that this offense occurred on October 23d, 1938, and again on February 8th, 1939, at the home of her parents where she resided with them and a brother.
It was also testified on behalf of the state that Mary Masnik was pregnant with child as a result of the conduct of her father on the first occasion; that he made a confession to the police of both offenses which was reduced to writing and signed and sworn to by him; and further, that shortly before the trial of the indictment he had gone to the place of employment of his son, Paul, and had asked him to help him "kill the case" by asking Paul to take the blame for Mary's condition and also said that he would pay $4,000, or $5,000, to "kill the case" and asked Paul to see his sister and mother on his behalf.
The plaintiff in error denied the charge and denied that he made the said alleged propositions to Paul. He further said, in effect, that he had been induced by the police to make a false confession by deceit in that he was told that it would be to his interest to do so. The plaintiff in error argues three points on assignment of error and specifications of causes for reversal based upon the entire record.
It is first contended that the trial court was in error in permitting Anna Masnik, wife of plaintiff in error, to testify to matters other than to prove the fact of marriage. She was asked, and answered without objection, questions as to the number of children born of the marriage, the age of her daughter, Mary, of whom the household consisted, and whether Mary was a child of the marriage.
A wife or husband is precluded from testifying against each other in a criminal action except to prove the fact of marriage.
R.S. 2:97-4. The testimony of the wife was erroneously admitted and should have been struck even though the objection was untimely. Nonetheless we deem it harmless error for the reason that the same testimony was later on properly adduced by other witnesses including the plaintiff in error. There was therefore no prejudice to the plaintiff in error by the admission of the testimony of the wife. Cf. State v. Littman, 86 N.J.L. 453; affirmed, 88 Id. 392; State v. Matarazza, 93 Id. 47; affirmed, 94 Id. 263. State v. Sandore, 1 N.J. Mis. R. 537; affirmed, 100 N.J.L. 187.
Secondly it is the contention that the trial court committed error in charging to the jury as a fact what was not a proven fact as to the guilt of the plaintiff in error. The objection is to ...