tors in making a division of the property | sistance of Mr. Sayer and Mr. Wall as eminvolved. ployees.

་

As the business progressed, various disagreements and disputes arose between the three stockholders, which later resulted in the discontinuance of all operations on the part of the corporation. On July 19, 1920, Sayer and Wall filed their petition in the superior court praying for the dissolution of the corporation and the appointment of a re

The complainant's bill deals with the matter of the arbitration, and sets up the invalidity of the award, making certain specific allegations in support of her claim in that regard. We think that the allegations of the bill are sufficient to require the respondent to answer, and that the demurrer of the respondent should have been overruled. The appeal of the complainant is sus-ceiver of its assets and effects under chapter tained, the decree of the superior court is reversed, and the cause is remanded to said court for further proceedings.

Inc.

(No. 524.)

1925 of the Public Laws, and the acts in amendment thereof and in addition thereto. The prayer of the petition was granted. and on July 23, 1920, a decree was entered appointing a receiver with power to take charge of the estate and effects of said corporation, to collect the debts and property

SAYER et al. v. CLARK, SAYER & WALL, belonging to it, and to allow or disallow, in whole or in part, all claims filed against it. It appears that the corporation has no (Supreme Court of Rhode Island. Dec. 23, creditors, and that its only liability is to its

1921.)

Appeal and error 1024 (2)-Trial court's action confirming receiver's report on questions of fact upheld in absence of clear showing of

error.

three stockholders for the amount of its capital stock. Except for a small item of $1.89, the assets of the corporation consist of accounts receivable, of which $419.18 has been collected, together with certain claims against the stockholders.

Where the questions involved are largely questions of fact, and the court on appeal can- From the evidence taken before the renot say on the testimony that error is clearly ceiver, it appears that Clark, Sayer, and shown in the action of the trial court confirm-Wall respectively admit an indebtedness to ing the receiver's report, the judgment will be the corporation of $2,358.04, $2,829.86, and

affirmed.

Appeal from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge.

$2,900.85.

The report of the receiver to the superior court increases the several amounts admitted to be due by adding $180.21 to the indebtedness of Clark, $253, to that of Sayer, Petition by Herbert G. Sayer and another and $253, to that of Wall. The report of the against Clark, Sayer & Wall, Incorporated, for dissolution of defendant corporation and receiver has been confirmed by the superior appointment of receiver. From a decree court, and the case is now before us upon confirming the receiver's report, an appeal the appeal of Sayer and Wall from the final was taken. Appeal dismissed, decree affirmed, and cause remanded for further proceedings.

decree.

The more important questions which the appeal presents for consideration are the additions made to the several amounts which

Lee, Boss & McCanna, of Providence, for the parties respectively admit to be due. petitioners. These additions aggregate $686.21. An exStephen D. Paddock, of Providence, for amination of the record does not disclose claimant Clark. James B. Littlefield, of Providence, for re- sustaining the appeal. The questions inceiver.

anything which would warrant this court in

volved are largely, if not wholly, questions of fact, and we cannot say that, upon the testimony, there is clearly error in the action of the superior court confirming the receiver's report.

PER CURIAM. On November 4, 1919, Earl S. Clark, Herbert G. Sayer, and John J. Wall became incorporated under the name of Clark, Sayer & Wall, Incorporated, for the purpose of taking over and conducting the business of accounting, auditing, etc., previously carried on by Mr. Clark with the as- ings.

The appeal is dismissed, the decree of the superior court is affirmed, and the cause is remanded to that court for further proceed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(115 A.)

(96 N. J. Law, 461)

STATE v. KNIGHT.

GUMMERE, C. J. The defendant, having been convicted in the Middlesex oyer and terminer of murder in the first degree per

(Court of Errors and Appeals of New Jersey.petrated by killing one Edith Wilson while

Nov. 14, 1921.)

1. Criminal law 1159(1)-Review of proofs not a common-law function of courts of appeal.

The review of verdicts for the purpose

of

determining whether they are supported by

the proofs is no part of the common-law function of the Court of Errors and Appeals.

2. Jury 37-Act providing for review of proofs by Court of Errors and Appeals not in conflict with Constitution, declaring right of jury trial inviolate.

Act April 12, 1921 (P. L. p. 951), providing for review by the courts of appeal to determine whether the verdict was against the weight of evidence, substituting the Court of Errors and Appeals in place of the trial court, is not in conflict with Const. art. 1, pars. 7 and 8, declaring that "the right of a trial by jury shall remain inviolate"; such act giving defendant only the right to have the verdict reviewed at his option.

3. Constitutional law 56 Act providing for review of proofs by Court of Errors and Appeals not in conflict with Constitution, vesting judicial power.

Act April 12, 1921 (P. L. p. 951), providing for review of questions of fact by Court of Error and Appeals, does not conflict with Const. art. 6, § 1, par. 1, declaring that "the judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes, as heretofore"; such review of questions of fact not being inconsistent with the inherent characteristics of the court.

robbing her and also attempting to commit a rape upon her, has brought up to this court the entire record of the proceedings had upon the trial, pursuant to the provision of section 136 of the Criminal Procedure Act (2

Comp. St. 1910, p. 1863).

The only ground upon which the defendant seeks to reverse the conviction is that the verdict is clearly against the weight of the evidence, for the reason that it does not appear from the testimony that he committed the crime of murder, as charged in the indictment, but, on the contrary, it shows that, if any crime was committed by him, it was of a lower degree than that found by the jury. He bases his right to have this court sitting in review, determine whether the verdict of the jury was against the weight of the evidence, upon the act of April 12, 1921 (P. L. p. 951), entitled:

Confession, in 4. Criminal law 534 (2) connection with other evidence, held sufficient to justify verdict of first degree murder. In prosecution for murder, evidence of de-a fendant's confessions, in connection with jewelry taken from deceased, held sufficient to justify verdict of first degree murder.

"Supplement to an act entitled 'An act relating to courts having criminal jurisdiction and regulating proceedings in criminal cases.'"

The statute appealed to enacts that:

"In all cases where the plaintiff in error shall elect to take up the entire record with his writ of error, as provided in the act to which this is a supplement, he may assign as error that the verdict was against the weight of the evidence, whether any exception has been taken or not, or whether any motion to acquit has been made or not, and if it shall appear from a consideration of the entire evidence that such verdict was against the weight of the evidence the appellate court shall remedy such wrong by reversing such verdict and awarding a new trial."

The state concedes that, if this statute is valid enactment, it justifies the assignment of error in the present case. It contends, however, that the act is unconstitutional, first, because it violates article 1, paragraphs

5. Rape 15-Attempt begins with primary 7 and 8, of the Constitution, which declare attack.

An attempt to commit rape does not begin with the act of penetration, but with the primary attack on a woman, made for the purpose of carrying out that intent.

that "the right of a trial by jury shall remain inviolate," and that "in all criminal prosecutions the accused shall have the right to a *** trial by an impartial jury"; and, second, because it violates article 6, section

Kalisch, J., Walker, Ch., and Black, J., dis- 1, paragraph 1, of that instrument, which senting in part.

declares that "the judicial power shall be vested in a Court of Errors and Appeals in

Error to Court of Oyer and Terminer, Mid- the last resort in all causes as heretofore," dlesex County.

George Washington Knight was convicted of murder in the first degree, and he brings error. Affirmed.

and in certain specifically named courts which are inferior thereto.

[1] This contention on the part of the state presents a preliminary question which we must determine; for, if it is sound, the

William I. Garrison, of Atlantic City, for assignment of error must fall, as the review plaintiff in error.

Joseph E. Stricker, Prosecutor of the Pleas, and John E. Toolan, Asst. Prosecutor of the Pleas, both of Perth Amboy, for the State.

of verdicts for the purpose of determining whether they are supported by the proofs in a case is no part of the common-law funcIn taking up the contions of this court.

sideration of the questions thus raised, we constitutional protection which that instruare met with the contention of the defendant ment gives him, and insist that the verdict that the matter is stare decisis; and he ap- of the jury be accepted as a finality, or he peals to our decision in the case of Kohl may elect to treat the verdict as not a final v. State, 59 N. J. Law, 445, 36 Atl. 931, 37 determination of the facts, and call upon Atl. 73, as authority for his position. In this court to determine whether it is justithat case this court, under a statutory pro-fied under the evidence.

vision similar in its essence to that contain- A question somewhat similar to that now ed in the act of 1921 (but which was shortly under consideration was presented to the Suafterward repealed), examined the testi-preme Court in the case of Edwards v. State, mony sent up with the writ to determine 45 N. J. Law, 419. There the defendant was whether or not a conviction of murder in tried and convicted under a statute which the first degree was justified, and, reaching permitted a person charged with crime to the conclusion that upon it the guilt of the waive indictment and trial by jury and redefendant was doubtful, reversed the convic- quest a speedy trial before the court of spetion and sent the case back for a new trial. cial quarter sessions. A conviction having Counsel for the state argues that the matter been had, he challenged its validity upon is not foreclosed by that decision, for the rea- the ground that the Legislature by passing son that, so far as the opinion in the case the act had contravened the provisions of discloses, the question of the constitutionali- the Constitution relating to trial by jury. ty of the law was not considered, and that therefore it may fairly be concluded that it was not raised. Without determining wheth-gether with that which prohibits an alleged er the one contention or the other is sound, we have assumed, for the purposes of the decision, that the case of Kohl v. State is not controlling upon this point, and proceed to a consideration of the soundness of the proposition submitted by the prosecutor of the pleas.

Mr. Justice Depue, in dealing with this contention, pointed out that these provisions to

"A person may renounce a provision made for his benefit, and to that maxim, 'Quilibet potest renunciare juri pro se introducto,' which applies as well to constitutional law as to any other."

criminal from being tried upon a charge laid against him, except upon "a presentment or indictment by a grand jury," are a part of the Bill of Rights, like the right to enjoy religious freedom, the right to enjoy and defend life and liberty, the right to enjoy freedom of speech, and security against unrea[2] Taking up the first point-that is, that sonable searches and seizures, designed for the statute violates the provisions of the Con- the security of the personal rights of the stitution relative to trial by jury-the argu- individual, and that they are expressly rement, as we understand it, is that in a crimi-tained by the Constitution itself to the peonal case the verdict of the jury on the ques-ple from whom that instrument emanated. tion of the guilt or innocence of a defendant and then declared that these rights, thus is final, and, in view of these provisions, can- retained, are subject to that fundamental not be nullified by judicial action. But this rule of law that— is not so. Mr. Justice Dixon, in his opinion in Kohl v. State, 59 N. J. Law, 446, 36 Atl. 931, 37 Atl. 73, points out that, although the jurors compose the appropriate tribunal for the determination of controverted questions of fact, they cannot justly find a verdict for the state in a criminal case upon evidence which, viewed in any rational aspect, must leave reasonable doubt of guilt in every considerate mind, and that against such a verdict the party aggrieved can, by the common law, appeal to the trial court for a new trial. The narrow question is whether the present statute, which merely substitutes this court in the place of the trial court, violates the constitutional interdict. To us it seems clear that this mere substitution does not lessen the constitutional protection which the provisions throw about a person charged with A reading of the statute makes it apparcrime. But, if we are wrong, it does not fol-ent that it places an additional burden on low that the statute is invalid. The purpose of the act is to increase that protection rather than diminish it. It does not vest in the state the power to submit to this court the question of the validity of a verdict, but only clothes the defendant himself with the right to have that verdict reviewed at his option; that is to say, he may rest upon the

We concur in the view thus expressed, and conclude that the statute does not violate the provisions of the Constitution which we have been discussing.

[3] We now take up the consideration of the second ground of attack upon this statute, namely, that it violates that part of section 1, article 6, of the Constitution, which declares that

"The judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes, as heretofore."

this court, requiring it not only to pass upon alleged errors of law in criminal cases brought up for review, but also upon an alleged error of fact; that is, the mistake of a jury in basing its verdict upon insufficient evidence. But in doing that it does not curtail in any degree the constitutional powers vested in the court, but, on the contrary, in

(115 A.)

creases them. We are to determine, there- coming up from the law courts and of allegfore, whether the Legislature may vest in this ed errors both in the application of legal court powers in addition to those exercised rules and in conclusions of fact in cases comand enjoyed by it at the time of the adoption ing up from the Court of Chancery. This of the Constitution; and this question we was the limit of our jurisdiction at the time think, is answered by the opinion of the late of the passage of the statute which was the Chief Justice Beasley in Harris v. Vander-subject of consideration in Harris v. Vanderveer's Executor, 21 N. J. Eq. 424. He says: veer's Executor. That statute enacted that "The essential qualities of all the constitutional courts are indestructible and unalterable by the Legislature. But an extension of the jurisdiction of a court, such extension being in harmony with its character, and not being a usurpation on the inherent powers of any other court, is not within the constitutional prevention. In the judicial system of a state, few things can be imagined more obstructive of the progress of society than courts with jurisdictions absolutely fixed. * * Such a contrivance is an anomaly nowhere to be found; it is certain it cannot be pretended to have ever existed in this state. From the earliest times, every session of the Legislature has added to the subjects of judicature, and the jurisdiction of our courts has been adjusted to this evervarying condition of things."

*

all persons aggrieved by any order or decree of the Prerogative Court might appeal from the same to this court "in the same manner in all respects as now provided by law for appeals from the Court of Chancery." The Prerogative Court, in its powers, functions, characteristics, and jurisdiction, was modeled to a large extent upon Ecclesiastical courts of England. It was as distinct, in its essence, from the Court of Chancery as it was from our courts of law. If the Legislature, instead of providing for the broad review which existed in cases coming up from chancery, had seen fit to limit the review to alleged errors of law, its power to do so could not be successfully challenged upon the theory that such a review was not

And after a further discussion of the mat- consistent with the nature of this court. ter he concludes as follows:

And the converse is true, namely, that the conferring upon this court of jurisdiction to review conclusions of fact, as well as alleged errors of law, in cases which, until the enactment of the statute, were outside our jurisdiction, is not inconsistent with the inherent characteristics of this court. In fact, it was expressly so decided in the Vanderveer To say now that the extension

Will Case.

"The consequence is, that when the Constitution vests power in a court 'as heretofore' and declares that the several courts shall continue with like powers and jurisdiction as though the Constitution has not been adopted, the effect is, that the primitive powers of such tribunals remain inalienably established, while at the same time there is implanted in it that principle of development by which their cognizance may be extended over new cases as they arise of our jurisdiction by the present statute is and which principle is a part of their very na-out of harmony with the inherent character ture and Constitution. * * I have no doubt of the court would be to nullify our previous [therefore] that the jurisdiction of this court is declaration that a similar extension by the extensible at the will of the Legislature, pro- earlier statute is not so. vided, by such extension, the province of no other court or department of government is intrenched upon or invaded."

[4] Reaching the conclusion that neither of the constitutional provisions appealed to is a bar to the enactment of the statute, we take up the examination of the evidence in the case.

In his concluding statement the learned Chief Justice evidently referred to other constitutional courts, for no one appreciated The undisputed proofs show that on the more thoroughly than he did that the power evening of July 12th last Mrs. Edith Wilson of the Legislature over courts created by it attended a moving picture theater with a was supreme, and that the functions of such girl friend. They left the theater about 9:20 courts, of which the oyer and terminer is and walked part way home together, and sepone (State v. Taylor, 68 N. J. Law, 276, 53 Atl. arated a short distance from the Wilson res392), are subject to alteration, diminution, idence. Some three hours later Mrs. Wilor destruction at the will of the Legislature. son's dead body was discovered in a vacant It will be observed that in the above cita- lot a short distance from the point where tion the writer of the opinion limits the pow- she and her friend had parted company. An er of the Legislature in extending the juris- investigation disclosed that the upper part diction of this court, to such extensions as of the drawers had been torn apart; that are in harmony with its character, and it the underclothing was more or less bloodhas been suggested that the review of testi- stained; that the chemise and undershirt mony, in cases which are sent up to us from had been pushed up as far as the breasts; courts of law, is out of harmony with the that the private parts were lacerated; and inherent characteristics of the court. But there were marks about the neck, indicatthis, we think, is not so. As this court exist-ing pressure upon that part of the body. An ed at the time of the adoption of the Consti- autopsy showed that there had been a hemtution, its jurisdiction was limited to the orrhage in the vagina, but that the apparent

If the confessions were true, the guilt of the defendant was absolutely demonstrated.-is constitutional. In my judgment the act The testimony produced on the part of the state with relation to them was that each of them was voluntary. The defendant, as I have already said, denied this, and the court left it to the jury to determine the fact, and they resolved it in favor of the state's contention. We think they were entirely justified in their determination, and that these confessions, coupled with the other facts which we have recited, prove beyond a reasonable doubt that the defendant was guilty of the crime charged against him in the in