On appeal from Essex County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For reversal -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Burling, J. Wachenfeld, J. (dissenting).
[16 NJ Page 105] These two appeals certified under R.R. 1:10-1(b) were from two comparable orders of the Essex
County Court denying motions for new trial made by the defendants-appellants, Joseph Grillo and Silvio De Vita. The crime of which these defendants had been convicted was murder, in the first degree.
On November 9, 1951, James Law, a special officer, was shot and killed during a robbery perpetrated as he was escorting a supermarket manager from his store to a bank with the day's receipts. The facts concerning this robbery appear in more detail in the opinion of this court in State v. Grillo, 11 N.J. 173 (1952).
On February 25, 1952 these defendants, Joseph Grillo and Silvio De Vita, and a third individual Ralph Rosania, were placed on trial for the killing of James Law. The indictments charged each of them with commission of the offense of murder in the first degree. On March 8, 1952 all three were convicted of that offense. The jury recommended life imprisonment as to Rosania but made no recommendation as to Grillo and De Vita.
Grillo and De Vita appealed. Their convictions were sustained by this court on December 15, 1952. State v. Grillo, supra (11 N.J. 173 (1952)), certiorari denied, De Vita v. State of New Jersey, 345 U.S. 976, 73 S. Ct. 1123, 97 L. Ed. 1391 (1953). Subsequently De Vita sought release upon a writ of habeas corpus. After a hearing, on July 14, 1953, the Superior Court, Law Division, discharged the writ. In re De Vita, 27 N.J. Super. 101 (Law Div. 1953). This judgment was affirmed by this court on October 19, 1953. In re De Vita, 13 N.J. 341 (1953), certiorari denied, De Vita v. State of New Jersey, 346 U.S. 923, 74 S. Ct. 309, 98 L. Ed. (1954).
On March 25, 1954 defendant Grillo moved for new trial, asserting that he had been "denied due process of law in that he was tried by a jury which could not have heard the case if the facts now known had been revealed at the time the jury was selected." The facts alleged were that Arthur Kuhnle, one of the jurors, during the night of March 30, 1951 (almost 11 months prior to the trial of Grillo, De Vita
and Rosania for participation in the Law killing) had been the victim of a street robbery at gunpoint. A newspaper article, indicating on its face that it was published on the day of the robbery of Kuhnle, was attached as an exhibit to Grillo's motion papers. This newspaper article named and identified an Arthur Kuhnle as a night manager of a Western Union office and gave a detailed account of the affair. The record shows that the juror Arthur Kuhnle stated on the voir dire prior to being accepted as a juror in the Grillo-De Vita-Rosania trial, that he, Kuhnle, was employed by the "Western Union Telegraph Company" as a "Night manager." At the hearing on Grillo's motion for new trial on March 25, 1954 the State and Grillo's counsel stipulated that the argument proceed with the understanding that Arthur Kuhnle and the alleged victim of the March 30, 1951 robbery were the same individual, "subject to verification." Although this was unusual procedure we do not find it necessary to remand these matters for formal verification of that fact.
The transcript of the proceedings of the trial of Grillo, De Vita and Rosania, relating to the examination of jurors was "Received in evidence" on Grillo's motion. After examination of the transcript and after hearing argument on the motion, the Essex County Court denied the motion on March 25, 1954.
Counsel for De Vita had been present in the County Court during the proceedings on Grillo's motion. On April 15, 1954 De Vita made a comparable motion for new trial. An affidavit was filed on De Vita's motion in which the affiant stated, "My inquiries confirm the fact that Arthur Kuhnle, is the same person who sat as juror No. 5 in the trial of this cause * * *." Counsel for De Vita, at the hearing on the motion on April 15, 1954, stated that he had been present at the argument of Grillo's motion on March 25, 1954 and had no desire to argue his motion any further. The Essex County Court denied De Vita's motion for new trial on April 15, 1954.
Grillo and De Vita in their present separate appeals each stated only one question involved, namely, whether the trial court erred in denying his motion for new trial. We find no error.
The contentions of Grillo and De Vita depend upon the facts hereinbefore recited resulting from the record upon the motions and the trial proceedings. On page 49 of the transcript of the trial proceedings it appears that a prospective juror Clifford L. Gould (later excused by the state) on the voir dire was asked: "Has anyone ever attempted to commit a robbery against you or any other member of your family?" Gould's answer was "No, sir." Gould was the sixth prospective juror to be examined under oath, and the only one of the first ten prospective jurors so examined who was asked such a question (Kuhnle being the tenth examined under oath). In all, 80 prospective jurors were examined. Thirty-three were comprehensively examined, the remainder were partially examined. Of the 33 comprehensively examined only seven were questioned as to whether they or members of their family had ever been robbery victims. Of the 33, 14 were sworn as trial jurors; of these 14, only three had been asked the question relating to robbery attempts on them or their families. The examination of Arthur Kuhnle began at page 69 of the transcript of the trial proceedings. Examination of Kuhnle by Grillo's counsel included the following:
"Q. Have you read anything about this case? A. Yes, I have.
Q. As a result of what you have read in the newspapers have you any firm, imbedded conviction as to the innocence or guilt of the defendants in this case? A. No, I have not.
Q. Can you, if selected as a juror, approach this case with an open mind? A. I can.
Q. Would you, if selected as a juror, give the defendants the benefit of any reasonable doubt that might arise from the evidence? A. Yes, sir.
Q. Do you know of any reason why you cannot sit as a juror in this case? A. No, I know of none."
"Q. Does the fact that the person who was killed happened to be a special officer create in your mind any prejudice against the defendants? A. No.
Q. Can you, if selected, try this case without any prejudice, without any passion against the defendants, and with a clear, open mind decide it ...