On writ of error to the Essex County Court of Oyer and Terminer.
For the plaintiff in error, J. Victor D'Aloia.
For the defendant in error, Joseph L. Smith, prosecutor of the pleas, and Joseph E. Conlon, assistant prosecutor of the pleas.
The opinion of the court was delivered by
KAYS, J. The plaintiff in error was tried before the Essex County Court of Oyer and Terminer upon an indictment charging him with murder. The trial was heard before Daniel J. Brennan, judge of the Court of Common Pleas. The jury rendered a verdict of guilty of murder in the second degree with the recommendation of mercy. The court sentenced the defendant to fifteen years imprisonment at hard labor in the New Jersey state prison. A writ of error was taken under the one hundred and thirty-fifth and one hundred and thirty-sixth sections of the Criminal Procedure act.
The defendant was charged with killing one Louis Balducci who apparently was a bootlegger. The shooting took place on September 12th, 1930, at about ten-thirty in the morning on Seventh avenue, in the city of Newark, about
opposite the store of one Harry Mayer. Deceased was removed to a city hospital and about four and a half months later died. The direct cause of his death, according to the testimony of Dr. Martland, was a bullet wound received at the aforesaid time.
The evidence shows that the defendant and the decedent had been acquaintances for several years; that the deceased owed the defendant about $200 which the defendant had attempted to collect on several occasions without success. The proofs also should that at the time of the shooting the defendant, while driving his Nash sedan along Seventh avenue, Newark, saw the deceased in Mayer's store and called him out after stopping his own car on the opposite side of the street. The evidence further shows that the deceased walked across the street to the side of defendant's car and stood at the left side of the car conversing in loud tones with the defendant, and that after such conversation, or argument, the deceased turned and walked back toward the store and was shot down just as he reached the sidewalk. There was no direct evidence by any witness as to the proof who fired the shots. There was, however, circumstantial evidence that the shooting came from the defendant who was in the automobile and that such shooting caused the death of the decedent.
The first ground of reversal is that, "the trial court erroneously permitted the prosecutor to make a statement, in his opening to the jury, which was prejudicial to the defendant." The statement was as follows: "* * * at the end of the case I am going to ask you * * * to bring in a verdict for the extreme penalty, not only as a punishment to him, but as an example to others." It is contended that the last few words, "as an example to others," were improper and without justification and were injurious to such an extent to the defendant as to justify the court in reversing the conviction. It appears from the record of the case that counsel for the defendant asked for an exception to the statement. He did not request the court to direct a mistrial or to instruct the jury to disregard the statement. The statement by the
prosecutor was justified for the reason that the punishment of a criminal is not only intended as a punishment to such criminal but also as a warning to others for the benefit of society. However, even though it was improper, the mere taking of an exception to a statement by the prosecutor affords no ground for reversal.
The next point raised is that, "the court erroneously permitted the prosecutor of the pleas to plead surprise thereby allowing the state to use an alleged prior self-contradictory statement of a state's witness, Gabriel Contaldi, as evidence against the defendant." This witness, Contaldi, gave testimony on behalf of the state while on the witness stand which was contradictory to an earlier statement made to the officers of the state prior to the trial. The earlier contradictory statement was offered for the purpose of neutralizing the testimony given by the witness while being examined by the prosecutor. This prior statement was admissible for such purpose. In the case of State v. D'Adame, 84 N.J.L. 386, it was held, that where a party is "surprised" by adverse testimony of a witness called by him, the trial court may in the exercise of its sound discretion permit such party to offer proof of self-contradictory statements previously made for the purpose of neutralizing the effect of such adverse ...