On error to the Essex County Court of Oyer and Terminer.
For the plaintiff in error, Joseph Kraemer.
For the state, Joseph L. Smith, prosecutor of the pleas, and Joseph E. Conlon, assistant prosecutor.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. The plaintiff in error was indicted by the grand jury of Essex county for the crime of murder in the killing of one Michael Iaccarino. He admitted the killing, but claimed that it was done in self defense. The trial resulted in his conviction of murder in the first degree.
The undisputed proofs in the case showed that one Mary Impagliazio, who was a sister of the plaintiff in error, deserted her husband, with whom she had been living in Brooklyn, and went to Newark with Iaccarino, and lived with him as his wife at No. 11 1/2 Grant street, in that city, for some time. Plaintiff in error, having discovered these facts, went to Newark, according to his testimony, to attempt to persuade his sister to leave her paramour and come back to Brooklyn to live with her husband. When he reached 11 1/2 Grand street his sister was not in the house. He saw the landlady, however, and while he was having a talk with her he observed Iaccarino on the street, and went to meet him. After their meeting the two walked into a garage, in front of which they had come together, and went through the garage to the rear. While there the plaintiff in error shot and killed Iaccarino. He attempted to justify his act while on the witness-stand by testifying that before the shooting the deceased assaulted him, kicking him in the legs and striking him with his fists, and that the deceased then put his hand into his pocket, as if he were about to draw a gun; and that thereupon he, the plaintiff in error, pulled out his own gun and shot Iaccarino in self defense.
The conviction comes up for review under the one hundred and thirty-sixth section of the Criminal Procedure act. Comp. Stat., p. 1863. It is not contended, however, that the verdict of the jury is contrary to the weight of the evidence, the plaintiff in error basing his attack upon the validity of the conviction solely upon the alleged admission of incompetent testimony submitted on the part of the state, and upon alleged error in the charge to the jury.
Dealing with the first of these contentions, the argument
is that the trial court erroneously permitted the defendant's sister, Mary, who had eloped with the deceased, to testify to acts of, and conversations with him, not in the presence of the plaintiff in error, the manifest purpose of such testimony being to establish a motive for the killing on the part of the defendant. With two exceptions, none of the testimony was challenged by the plaintiff in error, and no action with relation to its admission or rejection was taken by the trial court. The case, as has already been stated, comes up under the one hundred and thirty-sixth section of our Criminal Procedure statute. Counsel for the plaintiff in error asserts that, notwithstanding the situation just adverted to, the statute requires this court to reverse the conviction if the testimony is legally objectionable. The language of the provision upon which counsel relies is that "if it appear that the plaintiff in error on the trial below suffered manifest wrong or injury, either in the admission or rejection of testimony, whether objection was made thereto or not * * * the appellate court shall remedy such wrong or injury and give judgment accordingly, and order a new trial." The Supreme Court in the case of State v. Mohr, 2 N.J. Mis. R. 261, points out that the statutory provision relied upon by counsel applies only where judicial action has been taken upon the question presented, and testimony has been excluded or admitted over objection taken; that the words "whether objection was made thereto or not" refer to the action of the trial judge in admitting or rejecting the testimony, and that where the court takes no action upon the question there is neither a judicial rejection or reception of the evidence. A number of cases are cited in the opinion in support of this rule, and we do not doubt its soundness.
The two questions which were specifically objected to called for information from the witness as to where she went when she was in Brooklyn on a certain occasion, and for what purpose, and, further, what she did after that purpose had been accomplished. Her testimony was that while she was in Brooklyn she went around a little for the purpose of
seeing if she could find "Mike;" that is, her paramour, the man who was killed, and whom she supposed to be in Brooklyn at that time. The other question she answered by saying that after failing to find "Mike," she got into a taxicab, and told the driver to take her back to Newark. We see nothing objectionable in this testimony. Its purpose manifestly was to indicate the character of the relationship existing between the witness and the deceased, and thus to establish a link in the chain of testimony showing a motive for the killing of Iaccarino by the plaintiff in error. But, assuming that it was incompetent, as counsel for the plaintiff in error contends, and that it should, therefore, have been excluded, certainly its admission was harmless so far as the defendant was concerned, for her illicit relations with "Mike" and the fact that they were living together in Newark were ...