Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.
[18 NJSuper Page 156] The defendant was convicted of an assault with intent to kill, after a trial in which there was no dispute as to the basic facts: Early on Tuesday, July 25, 1950, shortly after midnight, on North Willow Street, Montclair, in front of the home of his sister, Mrs. Mondsini, defendant shot one Nicholas De Falco with an automatic pistol. The bullet passed through his arm and into his abdomen and lodged so close to his spine that the surgeons have not tried to remove it. Defendant testified that he
feared that De Falco was about to attack him, that he shot in self-defense, that he did not intend the bullet to hit De Falco but was trying to scare him away.
The State's version of events leading up to the assault differs considerably from the defendant's. We will summarize the defendant's recital. On Monday, about 12 hours before the shooting, defendant went to Verona to demand $100 owed him by "Chief" Cammarata. Cammarata refused to pay, saying, "Well, if you want your money, see Mickey (De Falco's nickname). If I were you, I wouldn't go near him, either." And as defendant was walking away, Cammarata added, "Well, see me at 11 o'clock tonight in front of the restaurant," referring to a place on Bloomfield Avenue, Montclair, where defendant and his friends were accustomed to meet. Defendant testified that when De Falco's name was mentioned, he realized he was in trouble. "I feared the man." On two earlier occasions De Falco had beaten him brutally, and had threatened to kill him.
The defendant spent the early part of the evening at the home of his sister, Mrs. Mondsini. Shortly before 11 o'clock, the hour set by Cammarata, he left with one Foglia, whom he had asked to drive him to the restaurant. As they approached the restaurant, they saw Cammarata get into an automobile and drive away. They followed and after a few blocks, drew alongside his car. Defendant hollered, "Chief, get out; I want to speak to you." Cammarata stopped. "So we met and I asked him, 'How about that money you owe me.'" After a few words, Cammarata led the way back toward the restaurant. As he started his car, he shouted, "Wait until I get Mickey; he will knock your Goddamn brains out." Defendant did not pause at the restaurant but crossed Bloomfield Avenue, and on to his sister's house. He stayed there only a few minutes, then to his own apartment to get a pistol, and back to the Mondsini's. At about midnight, Foglia and Mrs. Paterno (a member of the family) in one car, and defendant in another, started to leave. At that moment, De Falco, with Cammarata and two other men,
drove up and called to defendant, "Get out of the car." When everyone had alighted, De Falco and Cammarata, with the other two men, walked toward defendant. Cammarata carried a club, while De Falco had his hand in his waist. He threatened defendant, "I will give you your money in your grave." "As he got within about six or eight feet, I would say, closer to me, he pulled his hand out of his waist, and it looked like -- it was shiny at night -- and it looked like a gun. So I pulled my gun out of my pocket and shot."
Cammarata testified for the State that defendant demanded money from him, though he owed defendant nothing. That the night of the shooting, when he and the other three men, in their car, came opposite Mrs. Mondsini's home, they saw defendant and another man on the sidewalk and heard one of them call, "Hey, I want to see you." They stopped and Cammarata and De Falco stepped out of their car and walked toward defendant and Foglia, while defendant came toward them. De Falco asked defendant why he did not leave Cammarata alone. "Centalonza says some curse words at us and said (to De Falco) 'I warned you not to bother me,' or something like that, and shot him." He denied that he carried a club or De Falco a pistol.
It is unnecessary to recite more of the testimony. Defendant argues as the first reason for reversal that the weight of the evidence did not support the verdict. We have no difficulty in reaching the opposite conclusion.
De Falco, the alleged victim of the assault, testified for the State, merely that he had been convicted of crime, that he did not know who shot him, and that the bullet went through his arm and lodged in his back. On cross-examination, he was asked concerning relations ...