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State v. Shiren

Decided: May 19, 1952.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
SAMUEL SHIREN, DEFENDANT-RESPONDENT



On appeal from Superior Court, Appellate Division, whose opinion is reported in 15 N.J. Super. 440.

For affirmance -- Justices Oliphant, Burling and Brennan. For reversal -- Chief Justice Vanderbilt, and Justice Wachenfeld. The opinion of the court was delivered by Burling, J.

Burling

The defendant Samuel Shiren after a jury trial in the Bergen County Court was on February 15, 1951, adjudged guilty of assault and battery and causing death by driving a motor vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others. He appealed to the Superior Court, Appellate Division, which on October 1, 1951, reversed the judgments of conviction, State v. Shiren, 15 N.J. Super. 440 (App. Div. 1951). The State then petitioned this court for certification, which was allowed. State v. Shiren, 8 N.J. 414 (1952).

The incident from which this criminal action stems occurred at about 1:30 p.m. on June 24, 1950, on State Highway Route 4, a dual highway at the locale in the Borough of Englewood. Three teen-age boys had been riding bicycles along the highway. On reaching that point thereon where Route 4 runs under what is known as the Jones Road Overpass, they parked their vehicles at the extreme right edge of the road, dismounted and proceeded to a point in the shade (it was an extremely hot day) a few feet from the roadway, with the purpose of resting and cooling themselves. A short time later, the defendant's automobile swerved from the "fast" (passing) lane across the "slow" (driving) lane and jumped the curb, striking the bicycles and two of the boys. One of the boys was thrown under defendant's car. He died later that afternoon. The second boy was injured and thrown back onto the highway, coming to rest in the middle of the east bound lane.

After his subsequent indictment, the defendant was tried before a jury, in the Bergen County Court, was adjudged guilty as above noted and was sentenced to the New Jersey State Penitentiary for a term of two to three years. The State's case against the defendant was presented upon the premise that defendant was driving the automobile while intoxicated. This was the theory upon which the case was tried and submitted to the jury. The defense was that the cause of this unusual conduct, not consistent with the operation [9 NJ Page 450] of an automobile in the exercise of due care, was a sudden physical attack, not due to the use of intoxicating liquor, which deprived the defendant of control over the operation of the automobile. Examples of conflict in the evidence on the question whether the defendant was intoxicated are as follows: Defendant testified that he was not intoxicated, and the details of his testimony in this respect were partially corroborated by Chapo, a subordinate employee who was with him earlier in the day of the accident. Of the witnesses for the State, Rosenkranz, a civilian passerby, testified that at the time of the accident defendant was drunk, "didn't know what he was doing" but an hour later "he didn't look so drunk any more"; Fitzgerald, also a civilian passerby, and his wife, testified that defendant was intoxicated at the time of the accident, although Mrs. Fitzgerald "wasn't too sure"; Bellingham, one of the investigating police officers of Englewood testified defendant was drunk, basing his conclusions on defendant's "staggering" and "indifferent attitude"; DuBos, another police officer, testified that defendant was intoxicated, so concluding from defendant's "odor and the manner of walking"; Miller, a police officer, corroborated this testimony; Abrams, Chief of Police of Englewood, "couldn't say whether he was drunk or sober"; Jack Kelly, the boy who was not hit by the car, testified that defendant was drunk; Dr. Eisenstein, who gave the defendant the sobriety tests at the police station, testified that he found defendant sober and that there was no doubt as to this. Dr. Mueller, a State's witness, expert on alcoholism and also a passerby at the scene of the accident (and who administered temporary aid to the injured boys) testified he "thought" defendant was under the influence of alcohol to some degree but that a disorder of circulation to the brain could simulate symptoms of alcoholism. He further testified that he meant only that defendant "had taken some alcohol" and that having an alcoholic breath does not indicate a man is unable to drive.

The defendant appealed the judgments of conviction to the Superior Court, Appellate Division, which reversed the judgments for the reason that certain medical testimony asserted to be relevant to the defendant's condition at the time of the accident had been improperly excluded by the trial court on the ground of remoteness. The State as hereinbefore noted petitioned for certification which was allowed by this court.

The questions involved presented by the parties to this appeal related to whether the trial court abused its discretion in excluding expert medical testimony, whether the trial court erred in admitting opinions of lay witnesses as to alleged intoxication of the defendant and whether the verdict of the jury was against the weight of the evidence. Appellate review in this case in the Superior Court, Appellate Division, was subject to and in this court is controlled by Rule 1:2-19(a), as amended June 7, 1951. The applicable portion of the rule provides that error in the admission or rejection of testimony "shall be cause for reversal if specific objection thereto was made and it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury."

It is obvious that proof of the physical condition of the defendant at the time of the event was vital to his defence. The objective of laying the groundwork for expression of an ultimate opinion of the condition of the defendant in relation to the control of operation of the automobile by him at the time of the event was the right of the defendant. The weight to be accorded the professional opinion was for the jury.

The principal question involved is that of the trial court's exclusion of expert medical testimony, including for the most part information sought to be elicited by defendant from Dr. Abraham S. Effron, a physician specializing in neurology and psychiatry and, as to the remainder, questions addressed to Dr. Bernard Eisenstein, the police department examining physician. The action of the court must be scrutinized,

although the generality of presentation of the points evinced in this category makes the task one of difficulty.

Dr. Effron was called as a witness by the defendant in order to substantiate defendant's assertion that he had "blacked out" just before reaching that portion of the highway adjacent to the area where the boys stood, and did not recover his senses until after the event. Dr. Effron testified that he initially examined the defendant on October 20, 1950, and again examined him on November 4, 1950. The State objected to all questions asked of the doctor relative to the results of these examinations and the doctor's opinion as to defendant's condition on June 24, 1950, principally on the ground of remoteness. This ground was found sufficient by ...


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