On error to Hudson County Court of Oyer and Terminer.
For the plaintiff in error, Robert H. Brenner.
For the state, William George, first assistant prosecutor (Daniel T. O'Regan, prosecutor of the pleas, on the brief).
The opinion of the court was delivered by
PARKER, J. The plaintiff in error was convicted of murder in the second degree, and brings this writ of error. There is a certificate of the entire record of proceedings at the trial, pursuant to section 136 of the Criminal Procedure act.
The indictment contained counts of murder, manslaughter, and assault and battery, but the last was abandoned at the trial.
The first point argued is that the verdict was against the weight of evidence. We are clear that it was not. It was admitted that the deceased, a young man named Disteso, came to his death from a gun shot wound inflicted by an automatic pistol in the hand of the plaintiff in error, defendant below. The defense seems to have been a combination of self defense and accident. The shooting admittedly occurred in the course of an assault by deceased Disteso upon one Romano. As to the general facts of this assault, the evidence for the state and for the defendant are in substantial accord except that defendant claimed that it took place inside his saloon or cafe in Hoboken, and the evidence for the state tended to show that it took place in the street outside. The state's version was that while Romano and several others were sitting in the saloon playing cards, Disteso opened the front door and called for Romano, who answered: That Disteso asked him to come outside, which he did and was there assaulted and beaten with some blunt instrument not produced at the trial; that Romano called for help and defendant ran out of the saloon with his automatic, and shot Disteso. The expert testimony indicated that the muzzle of the pistol was within two inches of Disteso's side. Defendant ran to his back yard and threw the pistol on a wood pile, where it was found shortly afterwards. Like other automatics, it ejected the shell when fired. An exploded shell was later found in the street near by. The story of the defendant was that the beating was being inflicted inside the saloon; that Romano called for help; that defendant thinking he saw the outline of a pistol in Disteso's pocket,
took his gun out of the drawer for possible self defense and came out from behind the counter holding it in his right hand, pointing it at deceased as a threat, or warning, and trying to parry the blows of the club or bar, whatever it was, with his left hand, when the pistol accidentally went off. Granting that if the jury believed defendant's version of the occurrence, a verdict of acquittal, or of manslaughter would have been the logical result, still it was for the jury to ascertain the facts from this conflicting evidence. If they accepted the state's version, there was ample evidence to support it, and we see no reason whatever for disturbing the verdict.
The second point challenges three rulings of the trial court, admitting testimony for the state over objection. The first of these was permitting Romano to testify that defendant was known as "Curly" The objection was that "it might be prejudicial to this defendant." It is now suggested that a nickname connotes a criminal record of character. The question was answered before objection, but in any event the objection seems too frivolous to merit discussion.
The defendant testified on direct that when Disteso was assaulting Romano, he said to Romano, "you take that skunk [referring to defendant] around with you in the car." On cross he was asked: "And be called you a skunk? A. Yes. Q. And that made you mad? A. [After objection] He does not make me mad, he got me suspicious * * *. Q. You were not mad at all? A. No. * * *. How did it make you feel when he called you a skunk? [objected to as already answered, and allowed]. A. Well, I don't feel so good."
The objection now made is that the question was irrelevant and immaterial. It was neither, as it bore directly on the issue whether the defendant shot accidentally, or in defense of Romano against a murderous assault, or because provoked by an opprobrious epithet. Moreover, this objection was not made at the trial, and the objection then made is not now argued.
Third (assignment and specification No. 8) that on cross-examination of defendant the court allowed the question:
"Q. Did you tell Inspector Kiely the truth about what happened two weeks before?" To which the witness answered: "I remember telling Inspector Kiely the trouble ...