On writ of error to the Union County Court of Oyer and Terminer. On indictment for murder in the first degree.
For the plaintiff in error, Salvatore F. La Corte.
For the defendant in error, Abe J. David, prosecutor of the pleas, and Walter C. Tenney, assistant prosecutor of the pleas.
The opinion of the court was delivered by
KAYS, J. The plaintiff in error, Di Dolce, was tried before the Union County Court of Oyer and Terminer at the October term, 1931, upon an indictment charging him with murder in the first degree. The jury rendered a verdict of murder in the first degree and the plaintiff in error was sentenced accordingly to be put to death. The plaintiff in error was charged with the shooting of John McGann, a police officer of the city of Elizabeth. The killing occurred about one o'clock in the morning of December 15th, 1930. Di Dolce was running a speakeasy at No. 7 West Grand street, in the city of Elizabeth, Union county. McGann went into the speakeasy about eleven o'clock in the evening of the previous day and ordered Di Dolce to close it and directed the patrons who were present to leave. The patrons did as they were told and after most of them had left McGann, who was in full uniform, went out to the street. A man named Pittius, who was in the speakeasy at this time and was intoxicated, started an altercation with McGann on the street. McGann attempted to arrest him, called a taxicab, which was a short
distance away, and put Pittius in it. About this time Miglorie, who was Di Dolce's bartender, stepped up to the taxicab and attempted to interfere with the arrest of Pittius. Whereupon the officer placed him also under arrest and put him also in the taxicab. Miglorie jumped out and had a tussle with the officer McGann, as a result of which the officer struck Miglorie with his night stick. While this struggle was taking place Di Dolce, who had been standing near the entrance of his speakeasy, walked down the street about seventy feet to where the taxicab was standing and fired two shots at officer McGann who fell to the ground. While the officer was on the ground he fired three or four more shots into his body fatally wounding him. After Di Dolce fired the shots he ran away toward the Pennsylvania railroad arch, which was a short distance off. Eight months later Di Dolce was arrested in California and brought back to New Jersey.
We are asked to set aside the judgment of conviction for a number of reasons set out in the assignments of error of which four were abandoned at the time of the argument. The first ground, upon which counsel for plaintiff in error bases his argument for reversal is that the court erred in admitting in evidence certain testimony of one Panepinto, a witness called by the defense. The prosecutor on cross-examination of this witness undertook to show by him that he was a godfather of one of the defendant's children, both the defendant and the witness Panepinto being natives of Sicily, and that according to the custom of Sicily, the relationship of a godfather to the members of the child's family is very close. We think that this testimony was entirely proper for the purpose of showing interest on the part of the witness Panepinto, thereby affecting to some extent his credibility.
The next contention is that the court erred in permitting the state to ask, on cross-examination, the witness Sammartino certain questions with relation to the actions of witnesses when visiting the wife of the defendant after the homicide had been committed. The question objected to was: "After the shooting you went to his house to tell his wife about it, didn't you?" Assuming that this question was not
proper cross-examination it was quite harmless and as the case comes here under the one hundred and thirty-sixth section of the Criminal Procedure act the plaintiff in error is not entitled to a reversal upon this ground.
It is next argued that the court erred in restricting counsel for the defendant in his cross-examination of a witness for the state, James F. O'Brien. The defendant had testified just prior to the shooting of the police officer that the police officer McGann said to him, "you get out of here you Guinea son of a or I go to kill you." The witness O'Brien was asked whether such a statement was made by the police officer and his answer was "no." On cross-examination the witness O'Brien was asked, "didn't you say that the police officer raised his club at Ed Pittius and that the defendant was alongside Ed Pittius?" The court sustained an objection to this question. Counsel for plaintiff in error contends that the question should have been permitted to be answered because it was contradictory of testimony the witness had given on direct examination, which testimony is quoted above. We think this question was properly excluded because it had no relationship to the matter testified to by the witness O'Brien on his direct testimony.
It is next contended that the court erred in denying certain of the defendant's requests to charge. There are about fourteen of these requests which were argued by counsel. These all relate to the matter of self-defense as a justification of the killing or to the drunkenness of the defendant as reducing the crime from murder in the first degree to murder in the second degree. On examination of the charge of the court and an examination of these requests brings us to the ...