On error to the Essex Oyer and Terminer Court.
For the plaintiff in error, Minturn & Weinberger.
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. Vincent Leonor, the plaintiff in error (hereinafter referred to as the defendant), was indicted for the murder of one Helen Leo on August 4th, 1930. The trial resulted in his conviction of murder in the first degree, without a recommendation of life imprisonment, and he has sued out the present writ of error to review the validity of that conviction.
The first contention made before us as a ground for reversing this conviction is that the trial court committed prejudicial error in charging the jury with relation to the method of firing the gun with which the killing was done. The defense was that the killing was the result of an attempt [108 NJL Page 79] on the part of the defendant to commit suicide. The proofs showed that he had been living in adultery with his victim, who was a married woman, and that some short time before the occurrence of the homicide she had severed her relations with him. At that time she resided with her husband in New York, and the defendant, apparently hoping that he might persuade the woman to resume those relations, telegraphed her, asking her to meet him at 205 Mulberry street, in Newark. She went there in response to this telegram, accompanied by a man named Benny LaScala, a deaf mute. The place on Mulberry street was a barber shop. They inquired there for the defendant, and learned that he was absent, but that he would be back again in an hour or so. They thereupon left the shop and walked around for an hour, and then returned to it. In the meantime the defendant had come to the shop, and, learning that the woman had been there and would return, went to his home and got a revolver, which he had stolen from his employer. The revolver was loaded. He then returned to the barber shop, met the woman in front of it and tried to persuade her to go with him to his room. This she refused to do. He then asked her to go to a restaurant with him for lunch. She also refused to do this. At that time her companion, LaScala, interrupted their talk and apparently attempted to assault the defendant, but was prevented from doing so by the woman. Just then Police Officer Maurer came upon the scene, and, apparently at LaScala's suggestion, arrested the defendant. He took him to the police box on the corner, the woman and her companion accompanying them. When they got there, and while the officer was using the call box, the defendant drew his revolver and fired four shots from it, one of which went through the hat of the officer and another of which struck the woman, killing her. The defendant's claim, as has been stated, and which he supported by his testimony, was that when he drew the revolver his intent was to shoot himself; that he drew the gun from his belt, put it up toward his head, and then someone grabbed him by the arm, and that he remembered nothing more; the reason for his alleged loss
of memory being that he had been so severely beaten by the police officer that he was unconscious, and that, as a result of this beating, he had been taken to the hospital, where he remained in an unconscious condition until the afternoon of the following day.
In charging the jury, the court, after commenting upon the statement of the defendant relating to the shooting, and which is above set forth, said, "now, we come to another piece of physical evidence, and that is the gun itself. The defendant says that he drew this gun from inside of his coat, from his belt, put it up toward his head, and then someone grabbed his arm. He remembers nothing more. Now, we have here four empty shells, four fired shells, which the testimony is were found in the gun afterwards." The court then proceeded to speak of the method which had to be used in order to fire the gun, exhibiting it to the jury, and calling attention to the fact that the pulling of the trigger would not cause it to discharge unless pressure was put upon the back of the gun at the same time. The contention is that it was error for the court to attempt to explain to the jury the method of firing the gun, because of the fact that no testimony had been offered to prove it. We consider the contention on the part of the defendant that this action of the court constituted legal error to be without merit. The gun itself had been admitted in evidence, and we perceive nothing objectionable in the calling to the attention of the jury the method which, as the court considered, was required by its construction to be used in causing its discharge, leaving it to the jury, as the court did, to determine from an inspection of the gun itself whether that view was sound or not.
The second contention made on behalf of the defendant is that the court committed prejudicial error in that part of its charge relating to what the hospital record, which the proofs showed had been made up almost immediately after the defendant's admission thereto, disclosed. The state had offered in evidence an alleged confession of the defendant, in which his guilt was admitted, supplemented by proof that it had been made within an hour after his admission to the
hospital. The defendant testified that at the time the confession was said to have been made he was unconscious. The court stated, in referring to this claim of the defendant, "we find another piece of physical evidence, and that is the hospital record." The court then read the record, which had been offered in evidence by the defendant, and which showed that at the time it was made the defendant had stated to the party making it the name of his employer and the residence of the latter; and further showed that he was then "well oriented." We see nothing objectionable in this part of the charge of the trial court. In view of the fact that the hospital record was put in evidence, not by the state but by the defendant himself, the court was entirely justified in referring to the facts disclosed in that record.
It is next contended that the court committed prejudicial error in making the following statement in the charge of the jury: "The defendant, on the other hand, asks you for a verdict, but I will not attempt to say what he does ask for. I will read you what his counsel did say: 'I want to thank you gentlemen in advance for the verdict that is going to give Vincent Leonor his chance to go back to those distant isles some day and be with his friends and relatives and those he loves, and not send him to the electric chair.'" We have not considered the question as to whether or not there is anything legally objectionable in this statement on the part of the trial court. The legal propriety of it is not challenged by any assignment of error or reason for reversal, and it is entirely settled that an alleged trial error which is not so ...