On error to the Essex County Court of Oyer and Terminer.
For the plaintiff in error, John W. McGeehan, Jr.
For the defendant in error, Simon L. Fisch and Joseph L. Smith, prosecutors of the pleas.
The opinion of the court was delivered by
BLACK, J. The plaintiff in error, Joseph Lennon, with two other defendants, were convicted of murder in the second degree for killing Edward Turella. A writ of error was issued out of this court to review the legality of the conviction of the defendant, Joseph Lennon. The plaintiff in error filed seven assignments of error and seven specifications of causes for reversal covering the same points.
The first and second assignments of errors; errors by the trial court in refusing to grant a motion for the direction of a verdict of acquittal.
Third, fourth, fifth and sixth; errors in the charge of the trial court.
Seventh; the verdict was against the weight of the evidence, under Pamph. L. 1921, p. 951.
The fifth and sixth assignments of error are not argued. They are withdrawn in the brief of the plaintiff in error.
A short summary of the testimony sent up with the writ of error will make clear the assignments of error relied upon for a reversal, other than those relating to the charge of the trial court.
The theory of the state, as expressed in the brief, is the killing of Edward Turella grew out of an attempted perpetration of a robbery by the defendants; first, of a diamond pin worn by a companion of Turella's, and second, of $5,000 which the defendants thought was in the possession of Turella and his companion Carrione, who was also shot and killed on the same occasion.
Elsie Naugle, the first eye-witness, testifying on behalf of the state, testified as follows: Early in the morning of September 30th, 1926, she, accompanied by Edward Turella and Carrione, went to a saloon at 381 Washington street in an automobile. That while she was outside of the premises Turella and Carrione went inside, and during the few minutes she remained outside, another automobile drove up with five men in it, who parked their car behind that in which she was. She heard them speaking about dividing some money. Shortly thereafter the five men went into the premises while she was still outside. About twenty minutes later she, too, went in, being invited by Turella to come in and have a drink. No. 381 Washington street was a saloon with a large barroom in the front and a room in the rear, marked on the map Exhibit S -1, Room B. Room B was separated from the barroom by an old-fashioned swinging door. She, Miss Naugle, with Turella, went into Room B, where they were seated at a table with Carrione and a girl by the name of Mae Martin. In the same room, at a table next to theirs, were seated the defendants Nolan, Cane and Lennon. All ...