On writ of error to Monmouth County Court of Oyer and Terminer.
For the plaintiff in error, Joseph F. Mattice.
For the defendant in error, T. Raymond Bazley.
The opinion of the court was delivered by
LLOYD, J. John Tomaini, plaintiff in error, was indicted and tried for murder in the Monmouth Oyer. He was convicted of murder in the first degree with recommendation of life imprisonment and sentenced accordingly. The writ of error taken out by him brings before this court by assignments of error and specification of causes for reversal certain alleged errors in the trial of the case, as also that the verdict was so seriously against the weight of the evidence as to require reversal.
Tomaini was indicted in statutory form for the murder. He was also indicted with the two others for murder in attempting to commit a robbery, and in the same count with conspiring, aiding and abetting others in the commission of the robbery and murder, but tried alone.
The several grounds urged for reversal will be taken up as presented in the brief of the plaintiff in error with the exception of the last, namely, that the verdict was not justified by the evidence.
To determine the merits of this last contention a short recital of the undisputed facts and certain proofs must be examined. The murder of which Tomaini was convicted was in the killing of one William Hobart who conducted a butcher shop in the borough of Avon. Tomaini was employed by Hobart as a butcher and the contention of the state was that he, knowing of the habit of Hobart to carry on his person large sums of money, conceived the plan of robbing him, and to this end conspired with Charles Dover and Paul Barba to accomplish the robbery.
On the trial of Tomaini, Dover was called as a witness by the state and testified to repeated efforts of Tomaini to induce him to join in the robbery. While stating in his testimony that he repelled these suggestions, his conduct implies to the contrary, for after various interviews with Tomaini, he met Barba on the night of July 14th and planned with him the execution of the scheme which Tomaini had not only proposed to him but had obviously likewise arranged with Barba. Early on the following morning Dover borrowed the car of one Russo and proceeded to Tomaini's house where Tomaini placed two revolvers in the car and said that he would be on hand to protect them in getting away. Dover says that he left Tomaini's house with the intention of returning the car to its owner, but meeting Barba he was persuaded to go on with the plan for the robbery, and being without hat or coat they proceeded to Barba's house to get them, together with a number of neckties, and thence to Hobart's butcher shop where they waited until Hobart came and entered his store shortly before seven o'clock. Barba followed Hobart in, demanding that he "stick 'em up" and immediately firing the shot which killed him. Dover started the car and picked up Barba a short distance away from the scene of the shooting.
Numerous witnesses testified to the presence of Tomaini in the immediate vicinity of the crime early in the morning,
depicting circumstances inconsistent with the defendant's subsequent claim that he was there ...