Andrew Mosley, the plaintiff in error, was convicted of murder in the first degree, in the Essex Oyer and Terminer, without recommendation, for the killing of Edward Tucker, and sentenced to be executed. He sued out a writ of error to this court under section 136 of the Criminal Procedure act. 2 Comp. Stat., p. 1863.
The homicide took place on January 10th, 1922, in a pool room in Newark operated by the deceased. The room was divided by a partition not extending its whole length, and not extending to the ceiling. There were present in the rooms, front and back — if they may be called rooms — Henry Williams, William Fleming, James Sully, William Smith, John N. Jones and Willy Fleming. Their testimony, although differing slightly as to the words used (one witness (Sully) saying he heard Mosley and Tucker arguing, but could not tell exactly what words they used), was that Mosley asked Tucker for money, to which the latter replied that he did not owe him anything and did not have anything, whereupon Mosley said with an oath that he would have to get it and Tucker made a vulgar and impossible retort, whereupon Mosley drew a revolver. Tucker threw up his hands, and Mosley shot; Tucker fell to the floor and shortly *Page 96 thereafter died; Mosley went out of the place, fled the state, lived at various places under an assumed name, and was arrested in Pottsville, Pennsylvania, more than three years after the homicide. Lee Edwards, a witness, testified that in another pool room on the morning of January 10th, 1922, Mosley, whom he knew, appeared, and in a conversation with a man standing near, whom witness did not know, said he was going to kill Tucker when he saw him. Mosley was the only witness sworn on his direct defense. He testified that he had just played a game of pool with someone in the Tucker pool room, and the latter came in and asked to see the gun he had to sell, and then he walked into the front room where he had left his coat, to take it out of the pocket, and in doing so the gun went off accidentally; he denied that he had had any altercation with Tucker about money or otherwise, never said in the presence of anyone that he was going to kill Tucker, and did not remember seeing him throw up his hands; that there was no feeling between them that he knew of; they always got along well together. Several witnesses were called in rebuttal for the state, but gave unimportant evidence, and this was so as to other testimony given for the defendant in rebuttal.
Counsel for Mosley says in his brief:
"The facts in this case lead irresistably to the conclusion that the defendant, Mosley, pulled out his gun in the heat of passion intending to do grave bodily harm to the deceased, Tucker, without justification and lacking the other elements of the highest degree, viz., premeditation, deliberation and willfulness."
It may be assumed, therefore, that the defense has been shifted from accidental killing to murder committed in the heat of passion, without justification and with intent to do great bodily harm, but without premeditation, deliberation and willfulness — in other words, to murder of the second degree. But this shifting of the defense has no controlling effect upon the questions before the court, and, therefore, is quite immaterial.
The first contention on behalf of the defendant is that the verdict is against the weight of the evidence. Clearly, *Page 97 it is not, but, on the contrary, is entirely justified by the evidence as the above recital of the testimony demonstrates. To justify a court in setting aside a verdict in a criminal case, under Pamph. L. 1921, p. 951, on the ground that it is against the weight of the evidence, the verdict must so clearly appear that it is against the weight of the evidence as to give rise to the inference that it is the result of mistake, passion, prejudice or partiality. State v. Karpowitz, 98 N.J.L. 546. And, surely, this verdict is not in that category. This contention must be overruled.
It is argued for Mosley that there was error concerning the admission and rejection of certain testimony of sundry witnesses, but, as to the court's ruling on such of it as was excepted or objected to, no manifest wrong or injury resulted to the defendant, and as to the rest there was no exception or objection, and, therefore, nothing to review.
Now, the object of an exception is to challenge the correctness of the ruling or decision of the trial court promptly, when made, to the end that such ruling or decision may be corrected by the court itself, if deemed erroneous, and to lay a foundation for review, if necessary, by the appropriate appellate tribunal. It is the general rule of law that rulings or decisions which affect substantial rights, and on which error is predicated, will not be revised unless an appropriate exception to the alleged error was reserved. 3 C.J. 894, 895. An error which occurs at the trial of a cause cannot be made a ground of reversal unless it is embraced in the bill of exceptions. Potts v. Evans,58 N.J.L. 384; Sherwin v. Sternberg, 77 Id. 117, 118. These are authorities in civil causes, but the rules of law are generally alike in civil and criminal cases. State v. Murphy,87 Id. 515. And in respect to the admission or rejection of evidence and exception thereupon, they are alike except as modified by statute or rule of court. While the Practice act of 1912 (Pamph. L.. p. 382) abolished bills of exceptions in civil cases, it did not abrogate the general rule that no decision relating to the reception or rejection of evidence will be reviewed unless the record discloses that an objection to such ruling was duly made or such ruling otherwise challenged at the *Page 98 time it was made. Kargman v. Carlo, 85 N.J.L. 632. But, in criminal cases, the old rule of requiring exceptions prevails, except on review of a conviction under Criminal Procedure act (2Comp. Stat., p. 1863, § 136), provided the plaintiff in error shall specify the causes in the record relied upon for relief or reversal under section 137 (supra, p. 1866), having brought up the entire record of the proceedings had upon the trial with the bill of exceptions under section 136, which provides that on review of the entire record of the proceedings had upon the trial, if it appear that the plaintiff in error suffered manifest wrong or injury, either in the admission or rejection of testimony, whether objection was made thereto or not, the appellate court shall remedy such wrong or injury and give judgment accordingly. This was construed in State v. Hummer,81 N.J.L. 430, to mean that the phrase "admission or rejection of testimony" imports judicial action — that is, that the action of the court in admitting or rejecting testimony may be reviewed without objection being made to such ruling. As is well said in the opinion of Mr. Justice Garrison, speaking for this court in the case (at p. 432): "No one but the trial court can reject the testimony, hence as `rejection of testimony' must imply action by the court, the same sort of meaning is by the familiar rule to be given to the word `admission' as an associated term of precisely the same nature used in exactly the same context." So, the words "admission or rejection of testimony" mean the ruling of the court thereupon, either admitting or rejecting it, which ruling the defendant is entitled to review without excepting or rejecting to the adverse ruling.
There are three classes of cases relating to the admission or rejection of testimony under Criminal Procedure act, section 136, in only one of which defendant can have a review. The first is that class in which questions are asked and answered, with no objection made by the defense, and it is afterwards argued on writ of error that the questions were incompetent and the evidence illegal. In this class it is held that there will be no reversal even under the Criminal Procedure act, section 136,supra, because no judicial action is *Page 99 involved. In State v. Mohr, 2 N.J. Mis. R. 261 (at p. 263); 127 Atl. Rep. 348, it was held by the Supreme Court that the rule that a judgment may be reversed for an erroneous admission or rejection of evidence, where the ruling is not objected to, applies only where judicial action has been taken upon the question presented and the testimony has been excluded or admitted over the objection thus taken; but where the court takes no action upon the question there is neither a judicial reception or rejection of the evidence. Affirmed, 101 N.J.L. 230.
The second class is where the defendant permits testimony to go in without objection to the question, but later moves to strike it out. In this class it is held that the objection made on the motion to strike comes too late. State v. Dragone,99 N.J.L. 144.
The third class is where testimony offered by the state is admitted over objection by the defense, or where testimony offered by the defense is excluded on the objection of the prosecutor. In either event there is a ruling upon the admission or rejection of the testimony, which is reviewable without exceptions or objection to such ruling, and, if it works manifest wrong or injury to the defendant, it is judicial error, which will lead to reversal. Criminal Procedure Act, § 136, supra; see, also, State v. Hummer, supra. This view requires consideration of testimony admitted or rejected, coming within the purview of the statute under the rule above laid down, so far as the subject was argued on behalf of Mosley. A question in that category occurred on the cross-examination of the state's witness Jones, who was asked by counsel for Mosley: "Q. Were you not held by Judge Stickel for perjury in a gun case in a pool parlor on Orange street?" Objection by counsel for the state, not stating any ground upon which it rested, was sustained; and defendant's counsel unnecessarily prayed an exception, which was allowed, signed and sealed accordingly.
A man held for court for perjury might not be indicted, or, being indicted, might be acquitted. The interrogatory was doubtless a preliminary one to be followed by a question as to whether or not he had been convicted; for it is only *Page 100 the latter that would affect his credit as a witness. SeeEvidence Act, Comp. Stat., p. 2217, § 1. And while the preliminary query may not be objectionable, nevertheless, the defendant was not manifestly wronged or injured by the sustaining of the objection to it, because if the discrediting evidence existed he could have effected his purpose by offering it. If it did not exist he was not harmed at all by the exclusion of the question. State v. Duelks, 97 N.J.L. 43, 48. Whatever the fact, defendant did not pursue the matter any further. The argument for this objection was "that it was proper cross-examination into the situation of the witness with respect to the parties, the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment and description, which were all fully investigated and ascertained for submission to the consideration of the jury, who had an opportunity of observing the witness' demeanor and of determining the just weight and value of his testimony; and, furthermore, the examination was chiefly confined to the point in issue, and the witness was being cross-examined upon relevant facts connected with the main issue." Not a word to the effect that he should be discredited because of conviction of crime. Mosley can take nothing by this objection.
As to all other questions concerning evidence argued for Mosley where there was any ruling of the trial court, no wrong or injury was done to the defendant, and, consequently, there can be no reversal on that ground.
It is next urged that it was error in the trial court to permit the prosecutor during the summing up to use and display a pistol before the jury which was not in evidence, the state not having the weapon with which the crime was committed. This was objected to, and when the objection was overruled and exception was taken, which was signed and sealed. The objection is that there was no testimony to show what the gun which was used looked like, one witness having said the barrel was six to eight inches long and *Page 101 another from three to three and a half inches; that it was a particular sort of a gun.
It could make no difference to the defendant what the witness testified was the length of the gun's barrel. The testimony was that defendant killed Tucker by a pistol shot, which he admitted, claiming it was accidental (which defense has been adandoned here, as already stated — the claim now made in defendant's behalf being that the killing was murder of the second degree). But, quite aside from the character of the pistol used, it could not have injured the defendant to have the prosecutor of the pleas make use of a pistol before the jury by way of demonstration in summing up in a case in which the defendant himself stated he accidentally shot the deceased, and that with a pistol. The court may, in its discretion, permit counsel to make use of physical objects in illustrating his remarks to the jury. 38 Cyc. 1484. It is within judicial discretion to permit experiments relevant to the issue to be made before the jury during a trial. State v. Harris, 1 N.J. Mis. R. 526;124 Atl. Rep. 602. This contention must be overruled.
The next error alleged is that the judge precluded the jury from finding the defendant guilty of murder in the second degree by erroneously defining the law of that offense. As already stated, the defendant was convicted of murder in the first degree, and, it not being alleged that the definition of that crime was erroneous, we conclude that it was correct without examining it. And because the jury convicted the defendant of murder of the first degree, the judge's definition of murder in second degree need not be examined and passed upon, because it could not have been harmful to the defendant. In State v.Moynihan, 93 N.J.L. 253, affirmed on the opinion of the Supreme Court, the Supreme Court said (at p. 256): "As it appears that the defendant was convicted of murder in the second degree, it becomes unimportant, under the evidence, whether or not the court properly defined murder in the first degree. The erroneous definition could not possibly have prejudiced him, since the jury practically acquitted him of murder in the first degree by finding him guilty of murder in the second *Page 102 degree." Now this, as a principle of law, is equally applicable to a case where the jury find a defendant guilty of murder in the first degree, thus eliminating second degree. That this rule works a converso is apparent from what this court said inState v. Banusik, 84 Id. 640 (at p. 652), that "the evidence which, in the minds of the jury, proved the defendant's guilt beyond a reasonable doubt, settled with equal certainty the degree of his guilt, and the court would have been entirely justified in charging the jury that, if they found him guilty, they must, under the proofs in this case, convict him of murder in the first degree," which, of course, would have excluded conviction of murder in the second degree and rendered innocuous an erroneous definition in the charge with respect to that degree.
The judge having charged the jury that —
"The distinguishing feature between the degrees of murder is the intent with which the homicidal act was done. The presumption of law is that all homicides are murder, but there is the further presumption that it is murder in the second degree. The burden of proving affirmatively that the accused is guilty of murder in the first degree rests upon the state."
Then defined murder in the second degree as follows:
"Murder in the second degree presents those classes of murder which are intended to do mere bodily harm, without intent to take life, or, where the act is done in the heat of passion, but without justification and lacking the other elements of the highest degree of crime, premeditation, deliberation and willfulness."
And the argument is that the court's definition of second degree murder was too narrow, that to constitute murder in the second degree the intent must be not to do mere, but great bodily harm.
Now, as the jury found the defendant guilty of murder in the first degree, and there was sufficient evidence to support that finding, and which was not against the weight of the evidence, the defendant is not harmed by the erroneous charge with reference to murder in second degree, assuming that there was error in that respect. State v. Mellillo, 77 N. *Page 103 J.L. 505; State v. Jayson, 94 Id. 467. It is true that both these cases hold that the errors complained of in them were prejudicial only to the state and not to the defendant. In the Mellillo case the defendant was convicted of murder in the first degree. Mr. Justice Garrison, writing the opinion of this court, said that whether or not the definition of murder in the first degree as complained of by the defendant was error, that six times in a single paragraph the jury had been told that premeditation was an indispensable element of murder in the first degree, and that when, therefore, referring to what had just gone before, the broader term "preconceived" was employed, the jury must have understood that what was meant was that sort of preconception which they had just been told was a requisite element of the statutory crime of murder in the first degree, and, while there was ground for verbal criticism, there was none for reversal. The court then went on to hold that the definition of murder in the second degree was erroneous; that it was too favorable to the defendant, but the jury having found that the defendant's act was deliberate and premeditated, neither the state nor the defendant was injured by the erroneous statement of the law. Therefore, this case is not authority to the effect that an incorrect definition of murder in the second degree is harmful to a defendant, where the jury find the defendant guilty of murder in the first degree under proper instructions as to what constitutes that crime.
In the Jayson case defendant was indicted on two counts, one for simple assault and battery and the other for atrocious assault and battery. He was convicted of simple assault and battery. He made the point that the judge erred in his instruction upon the right of self-defense; but this court said that it was unnecessary to deal with the contention further than to say that, if erroneous, the error was prejudicial only to the state and not to the defendant, and, of course, would not lead to a reversal, citing State v. Mellillo, in which the question of second degree murder was out of the case by the jury's finding; but in State v. Jayson the point on which this court observed that the charge was prejudicial to the state and not to the defendant, was in *Page 104 the case notwithstanding the verdict, the question being present in the finding of guilt of any degree. Therefore, it is not a question of whether the error is prejudicial to the state and not the defendant where, by the verdict, the erroneous instruction is necessarily harmless, because concerning a question which is no longer in the case.
It is also objected that the charge of the court with reference to a possible recommendation to life imprisonment and the power of the court of pardons to practically change or overrule the verdict, was erroneous. The charge on that head was as follows:
"The law now provides that every person convicted of murder in the first degree shall suffer death unless the jury shall by their verdict, and as part thereof, upon and after considering all the evidence, recommend imprisonment at hard labor for life, in which case this and no greater punishment shall be imposed. Prior to the enactment of this statute the jury in a homicide case had no function to perform except the ascertainment and declaration of the guilt or innocence of the accused, and in case of his being found guilty to declare the degree of the crime. The punishment which should follow the conviction was a matter with which the jury had nothing to do. By force of this legislation, however, the jury may, in case they shall adjudge the defendant to be guilty of murder in the first degree, determine, within the limits fixed by the statute, what his punishment shall be.
"Naturally, one of the elements to be considered by you, in determining that punishment, is whether, if you shall by your verdict impose life imprisonment, it can be disregarded and set at naught by the court of pardons, and also that provision of the statute which provides that every convicted prisoner confined in the state prison for the term of his natural life, whose record of conduct shows that he had observed the rules of the institution and who has served not less than fifteen years, may be released on parole, plus good time off."
The argument is that the court restricted the jury to findingfrom the evidence that the defendant was entitled to a *Page 105 recommendation, instead of allowing the jury an untrammeled discretion, and that, if the jury imposed life imprisonment, such a verdict could be disregarded and nullified by the court of pardons. These contentions are unsound.
It is true that in the first Martin case (State v. Martin,92 N.J.L. 437) this court held:
"The right given by the statute to a jury to recommend imprisonment for life upon a conviction of murder in the first degree, is subject to no restrictions, and need not rest upon any testimony, being within the unlimited discretion of the jury, and any instructions by the court, which tend to influence that discretion in any way, is beyond the power of the court and erroneous."
But the legislature in 1919 (Pamph. L., p. 303) provided that a recommendation to life imprisonment could only be made "upon and after consideration of all the evidence," which was construed in State v. James, 96 N.J.L. 132, 151, to mean all of the evidence adduced between the state and the prisoner on the issue of his guilt or innocence. Therefore, the judge charged correctly when he told the jury that by force of the legislation on the subject the jury might, in case they should adjudge the defendant to be guilty of murder in the first degree, determine, within the limitations fixed by the statute — that is, upon all the evidence in the case, what his punishment should be, having first charged that one convicted of murder in the first degree should suffer death, unless the jury by their verdict, and as part thereof, upon and after considering all the evidence, recommend imprisonment at hard labor for life, in which case that and no greater punishment should be imposed. In the second Martin case (State v. Martin, 94 Id. 139) the judge told the jury that the court of pardons was a court higher than the Oyer and Terminer, and might exercise the pardoning power of sovereignty as a court of pure mercy and grace; and if the defendant in a murder case is sent to a state prison for life that court might change the result of the verdict. And this court said it thought the remark was unfortunate, but could not say that the judge committed *Page 106 legal error or went beyond his right of comment, nor that harm was done to the prisoner; that the remarks of the judge were quite unnecessary, since the court supposed that every juryman must know of the existence of the court of pardons, and that it might change the result of their verdict by exercising mercy or grace. If, as in the second Martin case, the prisoner was not harmed by an instruction to the jury that the court of pardons could exercise the pardoning power of sovereignty and change the result of the verdict, then surely this prisoner was not harmed by the instruction that, if they consigned the defendant to life imprisonment, the verdict could be disregarded and set at naught by the court of pardons. Especially is this so by what was held in State v. Schilling, 95 Id. 145 (at p. 154), in which this court said that the instruction to the jury that the court of pardons might modify, change, reduce, abolish or set aside whatever result the jury might arrive at, whether they fixed the penalty as death or life imprisonment, as to that it was enough to say in answer that this court in State v. Rombolo, 89Id. 565, approved a similar charge. And, by parity of reasoning, the defendant was not harmed by the instruction that by present legislation the minimum term of life imprisonment is fifteen years.
Upon the whole matter we are of opinion that no legal error was committed by the trial court, and that the judgment should be affirmed.