On appeal from the Essex County Court, Law Division -- criminal.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
Defendants-appellants were convicted of murder in the first degree without recommendation and the death penalty was imposed. An appeal was taken to this court and argument was heard thereon on January 3, 1950, but before the opinion was handed down the defendants made application to this Court for a new trial or to have the cause remanded to the Essex County Court, where the trial had been held, so that they might make application there for a new trial on the basis of newly discovered evidence. By order dated January 23, 1950, the cause was remanded to the trial court for the purpose of the defendants making their application there pursuant to Rule 2:7-11. The motion was heard by Judge Francis, who had presided at the trial, on affidavits, briefs and argument, and in an opinion in which he fully reviewed the facts in the case and the law applicable thereto it was denied by order dated February 15, 1950. This appeal is from that order.
The motion was predicated upon the affidavit of Thomas Yanuzzi, one of the holdup gang, who fled after the murder on August 8, 1948, and who was not apprehended until March 8, 1949, in the State of Texas, after the trial and conviction of his co-conspirators, the defendants here. This affidavit was made January 11, 1950, and sets forth that:
"3. I was present at the Penn Tavern, in the City of Newark, on August 8, 1948, and as I was running out of the tavern, an unknown person, who was standing at the front end of the bar, near the vestibule, held a gun in his hand which he fired, in the direction of the shuffleboard room. As I ran past this unknown person, the powder burns from the shot which he fired scarred the tissue of my face, causing it to swell in the area over my left eye. The person who
fired this shot was neither Smith nor Bunk. I recall that at the time that I ran from the tavern the defendant Smith was grappling at the bar with two patrons.
"4. I believe that I could identify the person who fired the shot as I ran from the tavern if I saw him again."
It is supported by two other affidavits, one by a cousin of Yanuzzi, one Rusignola, an attorney at law of this State, who says that on August 8, 1948, he observed that Yanuzzi had a bruised hand and a burn and discoloration over his left eye, and another by one Racioppi, who states that on the same day he observed a red blotch over Yanuzzi's left eye.
Counter-affidavits were presented by Captain of County Detectives Cocozza, Lieutenant of County Detectives McLaughlin and Lieutenant of Police Wangner, all of whom went to Texas to return Yanuzzi to this jurisdiction. These show that in their interview with Yanuzzi in Texas and during the return trip he failed to state anything about an unknown person having fired any shots in the Penn Tavern but did give his story of the events that happened there up to a time when he claimed to have "blacked out." He said he had heard but one shot which came from the shuffleboard room and that after this he blacked out and knew nothing until he came to in the get-away car.
A motion for a new trial is addressed to the sound judicial discretion of the trial court. Such judicial discretion cannot be arbitrary, vague or fanciful but rather must be governed by and in accord with established principles of law. Concisely, it is concerned with the question whether justice requires that relief be given under the particular facts established. State v. Then, 114 N.J.L. 413 (Sup. Ct. 1935); La Bell v. Quasdorf, 116 N.J.L. 368 (Sup. Ct. 1936); State v. Hunter, 4 N.J. Sup. 531 (App. Div. 1949); State v. Hogan, 1 N.J. 375 (Sup. Ct. 1949); State v. Collins, 2 N.J. 406 (Sup. Ct. 1949). The exercise of such discretion will not be disturbed on appeal or review unless it has been clearly abused. State v. Collins, supra. So in reality there is but the single question before us: Was there an abuse of sound
judicial discretion in the denial of the appellant's motion by the ...