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State v. Hogan

Supreme Court of New Jersey
Feb 14, 1949
63 A.2d 886 (N.J. 1949)

Opinion

Argued January 3, 1949 —

Decided February 14, 1949.

Mr. Harry Green argued the cause for the defendant-appellant ( Mr. Philip L. Lipman, attorney).

Mr. Joseph B. Perskie, Deputy Attorney General, argued the cause for the respondent.


We are in accord with the opinion of Mr. Justice Burling, speaking for the former Supreme Court, with this qualification. With respect to the introduction of neutralization testimony the opinion states "The control of this examination is within the discretion of the trial court," citing State v. D'Adame, 84 N.J.L. 386 (E. A. 1913 ); State v. Kysilka, 85 N.J.L. 712 (E. A. 1913) and State v. Guida, 118 N.J.L. 289 (Sup.Ct. 1937), aff'd 119 N.J.L. 464 (E. A. 1937).

While the admission and extent of neutralization testimony is discretionary with the court such discretion is not of an arbitrary or absolute character but a legal discretion. It relates to the question of whether, under the particular facts and circumstances of the case, justice requires that the evidence be admitted. As said by Lord Mansfield legal discretion means "sound discretion, guided by law," and not by whim or humor. LaBell v. Quasdorf, 116 N.J.L. 368 (Sup.Ct. 1936).

The judgment of the former Supreme Court is affirmed. For affirmance: Chief Justice VANDERBILT and Justices HEHER, OLIPHANT and ACKERSON — 4.

For reversal: Justice WACHENFELD — 1.


Summaries of

State v. Hogan

Supreme Court of New Jersey
Feb 14, 1949
63 A.2d 886 (N.J. 1949)
Case details for

State v. Hogan

Case Details

Full title:THE STATE OF NEW JERSEY, RESPONDENT, v. LEWIS R. HOGAN, DEFENDANT-APPELLANT

Court:Supreme Court of New Jersey

Date published: Feb 14, 1949

Citations

63 A.2d 886 (N.J. 1949)
63 A.2d 886

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