State v. Matarazza

Per Curiam.

We conclude that the judgment under review should be affirmed, and except as to points noticed below, are content to adopt the opinion of the Supreme Court as satisfactorily expressing onr view.

Respecting the point that the witness Serritella was allowed over objection and exception to testify to sales on. dates other than those specified in the indictment, there are two answers —first, that the date is not material when time is not of the essence of the offence; secondly, the testimoi^ was competent as showing habitual sale of liquor contrary to law.

On the question of admitting the mercantile appraiser’s’ record as evidence, and the comment thereon in the charge, we are unable to agree that this was harmless if erroneous, for the keeping of the place was a controverted issue in the case, and the evidence was not harmless because cumulative. State v. Murphy, 87 N. J. L. 515; see State v. Brand, 76 Id. 267 *264 (at p. 270). But the document admitted was competent It was a carbon duplicate of a license issued to “Mattazza and Artisi” to conduct the “Presser House 25 Kooms” at the address where the liquor was sold. So far as the names do not correspond with those of the defendants, the doctrine of idem sonans is clearly applicable. It was objected that the card was “not a legal record.” This objection is without merit. It is not claimed that the mercantile appraiser was not required in the course of bis duty to issue the original license and to keep a record thereof; he so testified. Nor does it seem to be claimed that if the same facts liad been written into a bound record book made up for the purpose, and the names of the defendants had been correctly spelled therein, such record would not be admissible. Wigm. Ev., § 1639; 17 Cyc. 306 et seq.; State v. Van Winkle, 25 N. J. L. 73, 76. There is no magic in a bound book and penmanship to make a record evidential. There is, perhaps, less liability to fiaud or error, but -that is all. Whether it be a book, or sheets tif paper in a binder, or a box of cards on the card index system, and Whether the entries be in pen and ink, or pencil, or typewritten, or (as in this case) carbon manifold, the product is a document, and if made up as a record it has that evidential quality, and is competent in cases where a record is admissible. Consequently, there was no error in admitting it, and necessarily none in commenting on it in the charge as evidential that defendants were proprietors of the place.

The judgment will be affirmed.

For affirmance—Ti-ie Chancellor, Parker, Bergen, Black, White, Heppbnheimer, Williams, Taylor, Gardner, Aokerson, JJ. 10.

For reversal—None.