State v. Stavern

The opinion of the court was delivered by Magie, Chancellor.

The return do this writ of error discloses a rule to show cause, allowed by the Court of Oyer and Terminer, why a verdict in a criminal case should not be set aside and a new trial ordered, and the proceedings upon the rule resulting in its discharge.

It is contended that the action thus disclosed is reviewable under the provisions of section 136 of the Criminal Procedure act of 1898.

The conclusion of the court is that the legislation now embodied in that section requires us to review the proceedings had upon the trial in criminal cases, and does not extend to the review of proceedings after a trial has been concluded by a verdict. We find therein no indication of a legislative intent to require us to review the discretion of the criminal court on an application for a new trial.

Since the point thus deemed to preclude consideration of the case thus presented is novel, it is not improper to say that, having considered the matter diselos'ed by the return, we are all of opinion that the rule was properly discharged. The language of the prosecutor, in addressing the jury, which was complained of, was immediately explained by him not to *236 have the meaning which was imputed to it, and he instantly declared the true rule respecting the duty of the jury in determining the facts. The defendant did not call upon the court to make any ruling or give any instruction on the subject. The failure of the court to do so, under the circumstances, was not erroneous, nor was any wrong or injury done thereby to the defendant, within the meaning of the section in question.

The judgment must be affirmed.

For affirmance — The Chancellor, Chief Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgh, Vroom. 13.

For reversal — Hone.