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State v. O''Connor

Decided: September 27, 1946.

THE STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
MICHAEL O'CONNOR, PLAINTIFF IN ERROR



On error to the Hudson Quarter Sessions.

For the plaintiff in error, Albert J. Shea.

For the state, Walter D. Van Riper, Attorney-General and Acting Prosecutor of the Pleas of the County of Hudson, Raymond J. Cuddy and William P. Gannon, Deputy Attorneys-General.

Before Case, Chief Justice, and Justice Heher.

Heher

The opinion of the court was delivered by

HEHER, J. Plaintiff in error sued out a writ of error to review a judgment of conviction upon an indictment charging

that on September 21st, 1945, he "did carry" a loaded revolver "concealed on and about his clothes and person * * *, without having first obtained the requisite permit to carry the same," in contravention of R.S. 2:176-41. This indictment and another alleging that plaintiff in error also, on the prior August 31st, while armed with a revolver, perpetrated a robbery upon one John Daddetta were tried together, by consent.

The points raised and argued are (1) that the trial judge erred in his refusal to direct a verdict of not guilty at the close of the state's case; and (2) that the verdict of guilty was against the weight of the evidence.

The motion to direct a verdict of acquittal was addressed to the discretion of the court, and the action thereon is not reviewable on error. State v. Jaggers, 71 N.J.L. 281; State v. Metzger, 82 Id. 749; State v. Cohen, 97 Id. 5; State v. Pius, 118 Id. 212. Such action is reviewable, however, where the entire record of the proceedings had upon the trial has been returned by the plaintiff in error with the writ of error and the bill of exceptions, under R.S. 2:195-16, and the ruling has been specified as a cause for reversal in accordance with R.S. 2:195-18. Here, the entire record of the proceedings upon the trial, certified by the trial judge, was returned with the writ of error, but there was no specification of causes for reversal. The ruling thus complained of was made the subject of an assignment of error merely, and it is therefore not reviewable under section 2:195-16, supra. State v. Lyons, 70 N.J.L. 635; State v. Miller, 71 Id. 527; State v. Kind, 80 Id. 176; State v. Merkle, 83 Id. 677; State v. Ramage, 91 Id. 435. With the exception presently to be mentioned, the plaintiff in error is confined to the errors assigned upon the bill of exceptions.

The point that the verdict was contrary to the weight of the evidence has been raised by an assignment of error; and, by force of R.S. 2:195-19, the plaintiff in error in a criminal case may "assign as error that the verdict was against the weight of the evidence, whether or not any exception has been taken or motion to acquit has been made," where the entire record of the trial proceedings has been returned with the bill

of exceptions, and in such event the appellate court is enjoined to award a new trial "if it shall appear from a consideration of the entire evidence that the verdict ...


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