On error to the Hudson Oyer and Terminer Court.
For the plaintiff in error, Louis G. Hansen and Alexander Simpson.
For the state, John Drewen, prosecutor of the pleas, and Harlan Besson, assistant prosecutor.
The opinion of the court was delivered by
GUMMERE, CHIEF JUSTICE. The plaintiff in error, Antonio Mangino, was convicted upon an indictment charging him with the murder of his wife, the jury finding him guilty of murder in the second degree, and was sentenced to serve twenty years at hard labor in the state prison. He now seeks to review the validity of the sentence entered on the verdict.
The plaintiff in error operated a grocery store located in Guttenberg, and he and his wife lived in the rooms over it. They were married in Italy, of which country they were natives, some forty years prior to her death, which occurred on the 5th of July, 1930, and came to New Jersey in 1904, where they resided together the rest of her life.
According to his testimony on the witness-stand, during the latter part of the night of July 5th, while they were in bed together, he attempted to have sexual intercourse with his wife, but she refused. Notwithstanding her refusal, he persisted in his attempt, and finally she drew a revolver from under her pillow and told him that if he bothered her any more she would kill him. He took the revolver away from her, and then she took her dresses downstairs to the store, where she put them on. This was the first quarrel they ever had, they both having lived very happily together until that time. He then dressed and followed her to the store, and they discussed some business matters and she suggested to him that he should go out to make some necessary purchases at the market, in New York, where he was accustomed to purchase his supplies. As he was about to leave the store for that purpose (it was then about five o'clock, A.M.), she called him back and demanded her revolver. He took it out of his pocket, where he had deposited it after dressing, and put it on the showcase. When he did this, she grabbed it
and he also grabbed it, saying that she should not have it because if he let her take it she would kill him. While they were struggling the revolver went off and was left in his hand. He put it in his pocket and left the store, without attempting to ascertain whether or not his wife had been injured by its discharge, and went to the New York market and made his purchases. Upon his return to the store, after several hours, he found that his wife was dead from a bullet wound in the head. With the exception of the conditions under which the shooting occurred, his story was contradicted in all its material parts by witnesses produced by the state.
The first ground upon which we are asked to reverse this conviction is that the verdict of the jury was against the weight of the evidence. That the wife's death was caused by a bullet fired from a revolver is conceded. That the shot was fired by the husband was proved by the state and was not denied by him, his contention being that the discharge was accidental and wholly unintentional. Where the fact of killing is first proved, the law presumes it to have been founded on malice until the contrary appears, and all circumstances alleged by way of justification, excuse or alleviation must be proved by the prisoner unless they arise out of the evidence produced against him. This legal principle was first promulgated by our courts in the case of State v. Zellers, 7 N.J.L. 220, 243, more than one hundred years ago, and its soundness has never been questioned. On the contrary, it has been expressly affirmed by this court in Brown v. State, 62 Id. 666, 704, and later in State v. Ehlers, 98 Id. 236, 240. Consequently, the question raised by this ground of reversal is whether or not the testimony submitted by the plaintiff in error overcame the presumption of guilt which arose from the killing of his wife. This depended on whether or not the story told by him on the witness-stand was true. By their verdict the jury, by necessary implication, expressed their conclusion that it was not true, and our examination of the proofs in the case satisfies us that they were justified in that conclusion. We find, therefore, that this ground of reversal is without merit.
The second ground for reversal argued before us is that the trial court erred in refusing to direct a verdict of acquittal. What has already been stated disposes of this contention.
The third ground for reversal is directed at an excerpt from the charge to the jury, which is as follows; "I charge you that the shooting of a revolver at the body of the deceased by this defendant was an unlawful act against the peace of this state, likely to be attended by consequence of bloodshed." This statement was made by the court in explaining to the jury the character of murder in the second degree, and is only a part of the instruction upon that point. What the court said with relation to this feature of the case was as follows: "Now, as to murder of the second degree: The law is that any person who in committing any unlawful act against the peace of the state of which the probable consequence may be bloodshed shall kill another shall be guilty of murder; and I charge you now, gentlemen, that the shooting of a revolver at the body of the deceased, by this defendant, was an unlawful act against the peace of this state likely to be attended by the consequence of bloodshed, so that the killing here is presumed to be malicious and is therefore murder, unless and until the defendant produces facts and circumstances from which justification, excuse or extenuation may arise." This instruction, taken as a whole, was not erroneous. As has already been stated, the rule is entirely settled in this state that, the fact of killing being first proved, as was done in this case, the law presumes it to have been founded on malice ...