Opinion

State v. D'Ippolito

  • 19 N.J. 540
  • 117 A.2d 592
  • 1955 N.J. LEXIS 223
Court
Supreme Court of New Jersey
Filed
Oct 31, 1955
Status
Published
Author
Heher
On the bench
Vanderbilt, Heher
Cited by
29 cases

stressing that the “[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done”

How later courts described this case

  • stressing that the “[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done”
  • reversing conviction for perjury

Written by the judges who cited it.

The opinion

Heher, J.

(dissenting). I am not persuaded that the prosecutor’s unfinished statement engendered prejudice utterly *552 immune to the remediable process of an appropriate instruction. The trial judge acted promptly and decisively and in peremptory terms expunged the remark and the issue from the case and the jury’s consideration. Counsel did not ask for a supplemental instruction; indeed, he did not want it; he deemed a mistrial the only means of doing justice.

A motion for a mistrial is addressed to the sound discretion of the court; it is a power exercised with the greatest caution, in the furtherance of justice between the accused and the State, and not allowable of right unless the vice is plainly ineradicable. And, absent a specific request by counsel, a curative instruction is not ordinarily the duty of the trial judge, where a mistrial is refused. Stale v. Witte, 13 N. J. 598, 612 (1953).

I would affirm the judgment.

For reversal—Chief Justice Yandebbilt, and Justices Oliphant, 'Waoheneeld, Burling, Jacobs and Brennan— 6.

For affirmance—Justice Heher—1.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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