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State v. Cerce

Decided: October 4, 1956.


On appeal from the Passaic County Court, Law Division.

For affirmance -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.


This is an appeal by James Cerce, the defendant, from a conviction of second-degree murder, resulting in the imposition of a prison sentence of 25 to 30 years. In its broadest aspect, the defendant's main insistence is that his guilt was not established beyond a reasonable doubt.

The same theme is pursued under a number of different points, including error in refusal to grant a motion for judgment of acquittal, alleged insufficiency of identification, failure to sustain the burden of proof, and the assertion that the verdict was contrary to the weight of the evidence.

The issues thus raised require a factual analysis of the record and the evidence presented.

The defendant was charged with slaying his wife, Roberta, shortly after he found her in bed with another man, Mario Moreschi, at the Cerce home in Clifton, New Jersey. The

events surrounding the crime were almost exclusively developed by witnesses for the State as the defendant relied primarily upon his plea of not guilty and did not take the stand to testify.

The defendant and his wife lived at 1 Grant Avenue in Clifton, but in the early part of 1955 moved for the summer to a rented apartment in Belmar, New Jersey. On July 28, 1955, around noon-time, the defendant left the apartment and went to the Monmouth Race Track. The decedent likewise left the apartment, dressed in bathing attire, and went to the beach at Avon. While on the boardwalk there, she encountered Mario Moreschi, a New York resident, formerly a bartender at the Avon Inn, whom she had known slightly the previous summer. In response to her request, he drove her to a friend's house at Monmouth Beach, where they had a drink or two. Shortly thereafter they left and visited a restaurant and bar in Sea Bright, New Jersey.

Moreschi's vacation was terminating, and he was planning to return to New York in order to resume his employment on the following day. Apparently it was finally agreed that after he checked out of his hotel Roberta would change her attire and accompany him in his car as far as her home in Clifton, where they would stay overnight. In response to mutual inquiries, each informed the other that, although married, they were living apart from their respective spouses. They left the shore area in the late afternoon.

When the defendant returned to his apartment at Belmar after the races, his wife had already departed. He inquired of the landlady as to her whereabouts but received no information. A witness for the State who saw the defendant at the race track described him as wearing dark trousers and a white summer shirt with short sleeves and his initials over the shirt pocket. "He had a tear on the left sleeve of his polo shirt."

Moreschi and the decedent stopped at a restaurant in Newark and then continued on their journey to Clifton. Dramatically enough, at about the same time the defendant was also en route to northern New Jersey. A State's witness

testified that at 8 o'clock on the night in question Cerce was at a restaurant called "City Gardens" in Paterson. A Paterson newsdealer testified he sold the defendant a newspaper between "nine and nine-thirty that evening."

There was undisputed evidence that the defendant was at the White Horse Tavern in Paterson later in the same evening. He attempted to borrow $300 from the proprietor of the inn and had a long conversation with him in endeavoring to obtain at least some financial assistance. This witness described him as wearing a "white sport shirt" and "dark trousers." "He had a rip in his shirt." Cerce left the tavern at approximately 10:30 P.M.

According to the record, while the defendant was in the White Horse Tavern, Moreschi and the decedent arrived in Clifton at Cerce's home. Moreschi parked his car in front of the house and locked it. They tried to enter through the front door using her key but were unable to do so because the door had a bolt on the inside. They gained admittance by the rear, making use of her key.

They passed through the kitchen and into the living room and then turned on the lights. A short time thereafter, she announced she was going upstairs to turn on the air conditioner to cool off the bedroom. They had a drink or two until about 10:40 P.M., when they went upstairs to the bedroom.

There was a fan going in the hall at the head of the stairs, and the air conditioner was operating. The bedroom was suffused by a soft amber light. Both occupants disrobed and entered the bed, their platonic relationship terminated, and some 10 or 15 minutes later they fell asleep.

Some time later, Moreschi abruptly awakened to see a man in dark trousers and a white shirt standing "maybe a foot" away from him. The "intruder" struck at Moreschi with what appeared to be a crumpled pillow, grazing and scratching his face. Moreschi vaulted over his female companion and hastily retreated downstairs. He was unable to open the front door so ...

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