For the plaintiff in error, Rocco Palese.
For the defendant in error, Gene R. Mariano.
The opinion of the court was delivered by
BODINE, J. Edward Rodia was convicted of the murder of his wife on December 29th, 1943. The jury did not recommend life imprisonment. It was with his razor that her throat was cut, the jugular vein and windpipe being severed. The couple had separated after he lost his employment. She later sold their car and furniture. On the day of the murder, he called upon her early in the evening in a borrowed car and took her for a ride. He then pulled to the side of the road and stopped the car. Just what then occurred can only be deduced from his story. Whether there was a dispute about money matters is not certain. At all events, he drove from the scene of her death and reported to the police.
His statement immediately after his arrest was as follows: "Q. And what did you do? A. I pulled the razor and I cut her. I got scared. Q. Do you know where you cut her? A. Yes, around the face somewhere. Q. What was your intention when you started to do the cutting? A. To go for both of us, me and her. Q. You thought it over before you started it and talked it over or was it your suggestion? A. We talked it over, did you say? Q. Yes. A. Yes, we talked it over. Q. You mean to tell me she agreed to die there with you? A. Both of us, yes, yes, but I was a bum and I didn't
kill myself. I am going to die just the same. It makes no difference. I will just go a little later."
At the trial he testified that the statement was correct, except that part not quoted in which he said that he had asked for a part of the money realized from the sale of the property which had been turned over to her after the separation.
It is urged that there was error in overruling an objection to the following question propounded to the defendant upon cross-examination: "Were you ever convicted of the crime of atrocious assault and battery by cutting on the 13th day of April, 1928?" The answer was as follows: "I think I was, I think I was."
The question was predicated under legislative authority R.S. 2:97-13. The point is made that the prosecutor should not have included in his question the words "by cutting." In State v. Silver, 2 N.J. Mis. R 479, the prosecutor asked the defendant, upon cross-examination, the duration of his sentence. The Supreme Court said: "If, instead of proving the convictions on cross-examination, the state had seen fit to produce the record of the conviction, that record would have shown the sentence as well as the conviction. It was not improper, therefore, for the state to prove by the cross-examination anything that would appear in the record." This ruling was affirmed, 101 N.J.L. 232. See, also, State v. Merra, 103 Id. 361.
The crime of atrocious assault and battery is effected by maiming or wounding another. R.S. 2:110-1. It is usual in this state to charge in the indictment that the defendant did then and there "strike, beat, cut, lacerate, wound, maim and ill-treat" so and so. 2 Regan & Schlosser, Criminal Law of New Jersey, Suggested Forms, Form 31, p. 1189.
The interrogation of the defendant as to previous convictions denounced in State v. Mount, 72 N.J.L. 365, did not relate to matters which would appear in the judgment record but to matters not of record, i.e., the bulk of the man assaulted. The defendant then being confronted with the man was asked as to the way he had ...