On writ of error to the Essex County Oyer and Terminer Court.
For the plaintiff in error, Samuel J. Kessler.
For the defendant in error, Joseph L. Smith, prosecutor of the pleas; Joseph E. Conlon, first assistant prosecutor of the pleas, and Harold H. Fisher, special assistant prosecutor of the pleas.
The opinion of the court was delivered by
TRENCHARD, J. James Bassone was convicted of murder in the second degree in the Essex County Court of Oyer and Terminer on an indictment charging him with the murder of James La Morte on July 8th, 1928. He brings up the entire record and specifies causes for reversal, and also assigns errors on exceptions.
The state's evidence at the trial tended to prove the following matters of fact: The defendant was an operator of cafes, night clubs and poolrooms. In July, 1928, he owned and operated a so-called lunchroom at 10 Indiana street, Vaux Hall, and employed Helen Stokes as manager. Shortly after midnight in the early morning of July 8th, 1928, while several men and women were in the place, Salvatore Conforti and the decedent, James La Morte (also known as "Garcia"), armed with guns, entered and "held up" the place, searching those present and robbing some of them, taking, among other things, $500 belonging to the place from the custody of Miss Stokes, the manager. Among those present was one Sena and his friend Ceglia. The robbers merely pretended to search Sena but did not rob him. Miss Stokes knew and recognized La Morte, one of the robbers. After the robbers had departed in their automobile, Miss Stokes, about two A.M., telephoned the defendant, Bassone, and told him of the occurrence. The defendant thereupon went to Vaux Hall, and was informed by Miss Stokes of La Morte's participation in the robbery, and of Sena's presence. The latter had left the place and had gone to Ceglia's home. Sena left Ceglia's home about four-thirty A.M., and went to his own home, apartment 17, at 635 High street, Newark. Meanwhile, La Morte and Conforti, the robbers, met the witness Anthony Boscaino, and had the latter drive them to Sena's apartment at 635 High street. Boscaino was also accompanied by a man referred to by him as "Mike" but otherwise unidentified. Boscaino drove a roadster with a rumble seat. Boscaino and "Mike" sat in the front seat and La Morte and Conforti sat in the rumble seat. They arrived at the apartment at about six-thirty A.M. Sena was then in bed. Mrs. Sena opened
the door and let La Morte and Conforti in. She knew one of them. They went immediately to the bedroom where Sena was in bed. About five minutes later the bell rang again. Mrs. Sena went to the door and inquired "who's there?" The person did not answer. After waiting a while, speculating as to who it might be, she started to open the door; as she did so, the defendant Bassone passed her and went directly to the bedroom. She went to the bathroom. Then she heard two shots, and saw the defendant leave the apartment. She went into the bedroom and saw La Morte and Conforti lying on the floor, wounded, and her husband, Sena, just getting out of bed. Then Sena went to the street and notified Boscaino that La Morte and Conforti had been shot. Boscaino then telephoned the city hospital. As Sena came from the apartment and crossed the street to Boscaino's car, he was seen and watched by Charles Streiter, a milkman. Sena had nothing in his hand and gave nothing to Boscaino, and threw nothing in the car. Then Sena came to Streiter for assistance. Streiter went to the apartment with Sena. Soon the police and ambulance came. Streiter saw Sena come out of the apartment a second time, with a package in his hands. Sena took the package to the basement. Streiter and the police found it in the ashcan. That bag contained nothing but an opium smoking outfit. No gun was found in the apartment, nor upon Sena, nor upon either of the wounded men. Both bullets, the one that killed La Morte, as well as the one that killed Conforti, were fired from the same gun. Immediately after leaving the apartment the defendant fled to distant parts where he remained in hiding until arrested several months later.
Such were the matters of fact which the jury, if they saw fit, could and no doubt did find.
The defendant gave various versions of the affair at different times. At the trial he testified that early in the morning of July 8th, he received a telephone call from Helen Stokes advising him of the robbery; that he advised her to go to bed and that he would see her in the morning; that about daylight the same day he received another telephone
call advising him to go to Sena's apartment on High street for information concerning the robbery; that he immediately got up, dressed and drove to Sena's apartment in his Cadillac automobile; that Mrs. Sena opened the door, and he went past her to the bedroom where Sena way lying; that he was unarmed; that as he entered the room he asked if Sena wanted to see him; that thereupon either La Morte or Conforti, who were in the room, demanded that he take off his diamond ring; that a gun was pointed at him by one of the two, being about a foot away from him on his left; that he caught this person's hand and pushed him around, the other was facing him; that as he, the defendant, pushed this person's arm away, both guns (La Morte's and Conforti's) went off and defendant immediately left, got in his car and went immediately to Middletown, New York, because he was afraid of the "gang;" that he stayed there awhile and then he went to South Norwalk, Connecticut, where he lived under the alias Frank Romano, and from there he went to Yonkers, New York, where he lived for several months until he was arrested.
The witness Sena called by the defendant, and the witness Boscaino called by the state, testified to matters which if believed, would tend to weaken the state's contention as to some of the pertinent facts, but the testimony of both was ...