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State v. D''orio

Decided: February 10, 1947.

THE STATE OF NEW JERSEY, PLAINTIFF IN ERROR,
v.
JOSEPH D'ORIO AND ALPHONSE CARBONE, DEFENDANTS IN ERROR



On writ of error to the Supreme Court, whose opinion is reported in 134 N.J.L. 378.

For the plaintiff in error, Duane E. Minard, Jr., and C. William Caruso.

For the defendants in error, Anthony A. Calandra and George R. Sommer.

Donges

The opinion of the court was delivered by

DONGES, J. This writ of error is prosecuted by the state to review a judgment of the Supreme Court which reversed the conviction of the defendants in error in the Essex County Court of Quarter Sessions upon an indictment charging them with assault and battery and robbery.

The case came to the Supreme Court upon strict writ of error, the entire record not being produced, and the assignments of error, two in number, being directed only at alleged error by the trial court in refusing to charge two certain requests to charge submitted by counsel for defendants in error. The Supreme Court held that the refusal to charge one of the requests was proper but that the refusal of the other was error prejudicial to the men on trial and that it required a new trial. 134 N.J.L. 378.

The principal point in controversy, and the one upon which the reversal below was had, concerns the propriety of refusing to charge the following request:

"The members of the jury are instructed that the indictment in this case is not evidence against the accused and is not to be considered as evidence during your deliberations of the evidence in this case."

The Supreme Court in effect held that, it being elementary that an indictment is not evidence of the facts charged therein, the defendants in error were entitled absolutely to have the jury so instructed when properly worded and timely request was made, citing United States v. Schanerman, 150 Fed. Rep. (2d) 941.

The precise point here raised seems never to have been presented before in this jurisdiction and there is conflict in the holding of other jurisdictions upon the subject. See 23 C.J.S. 774. The Supreme Court of Iowa, in the case of State v. Sauerbry, 10 N.W. Rep. (2d) 544, adopted the view opposed to that of the court below in this case. It was there said:

"Defendant assigns as error the refusal of his requested instruction that the filing of the county attorney's information is not evidence and should not be considered by the jury. While the request was proper and might well have been given, we are not prepared to hold, in view of the instructions given, that its refusal was reversible error. The jury was fully instructed regarding the presumption of innocence, burden of proof, and reasonable doubt."

The court then went on to point out that some of the authorities holding it to be reversible error to refuse such a request were based in part on the fact that instructions given on the presumption of innocence were either incorrect or inadequate, and continued:

"We think it is the better view, supported by the weight of authority, that ordinarily it is not reversible error to refuse a requested instruction that the formal charge is no evidence of guilt, where the jury is fully instructed on the ...


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