On appeal from the Passaic County Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Francis. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J. Weintraub, C.J. (concurring). Weintraub, C.J., and Heher, J., concurring in result.
The appellant was convicted of second-degree murder in the Law Division of the Superior Court, Passaic County, and appeals directly to this court by virtue of Art. VI, Sec. V, par. 1(c), of the Constitution of 1947 and of R.R. 1:2-1(c). He was sentenced to the New Jersey State Prison for 10 to 12 years.
On May 2, 1929 Alex Szabo was shot while in the commercial garage of Max Siegendorf in the City of Passaic. Siegendorf was working in his repair shop at about 5:00 P.M.
on the day in question when he heard the sound of a shot. He went outside, walked over to the store portion of his garage, entered the "tire room," and found Szabo slumped in a corner. Szabo had been an occasional visitor to the garage and was known by Siegendorf.
Siegendorf assisted the wounded man to his feet, and Szabo thereupon remarked that he was paralyzed. Siegendorf drove the victim to the office of a Dr. Simon, who recommended that he be taken to a hospital. Accordingly, Siegendorf took Szabo to Beth Israel Hospital, which was near by.
There, at about 6:00 P.M., Dr. Edward Whelan, surgeon-in-chief, examined Szabo and determined from X-rays that a bullet had severed his spinal cord to the left of the third thoracic or dorsal vertebra. Dullness of the victim's lungs was noted, and it was ascertained that there was bleeding into the pleural cavity. Dr. Whelan's prognosis was highly unfavorable, and he informed Szabo that he would die in from three to six hours, suggesting a priest be summoned and also the police.
Thereafter, Detective Potosnak and Lieutenant Cunningham of the Passaic Police force were sent to the hospital. Around 10:00 P.M., Captain Monks arrived and with Detective Potosnak took a statement from Szabo. Szabo stated preliminarily that "Cockeye" O'Leary had shot him and he knew he was going to die; he felt "sure" of it. He was then questioned by Captain Monks while Detective Potosnak took down the questions and answers on a police department form. This written statement was subsequently marked by Szabo with an "X" in two places, Monks guiding his hand for that purpose. At the trial, it was admitted into evidence as a dying declaration.
In this statement Szabo asserted he realized he was going to die and that he had been shot by four men, two of whom he knew, one "Big Mike who worked for Johnny Jones * * * and a man by the name of O'Leary." The other two assailants were unknown. Szabo related that O'Leary and Big Mike had shot him once while he was standing and once while he was on the ground. Both, he said, had carried
guns in their hands and had stated, "I told you I would get you."
The victim also briefly outlined the source of his difficulty with O'Leary. He said O'Leary had been one of a number of bootleggers running a still in Ramsey and that he, Szabo, had stolen their "ale burner" and then unwittingly sold it back to O'Leary, not realizing it had originally belonged to him.
Szabo went on to describe an accidental meeting with O'Leary, at a busy corner in Passaic on the Tuesday prior to the day of the shooting, where the latter had informed Szabo that he was "out to get" him. Szabo's statement ended with an averment that the facts summarized were all he could tell the police about the shooting.
Early in the morning of the third of May, Detective McCann of the Passaic Police went to Szabo's room with a picture of O'Leary which had been procured from the Jersey City Bureau of Criminal Identification. Szabo identified O'Leary from the picture as one of the men who had shot him. The photograph was admitted into evidence.
Szabo died on May 4, 1929, and on the 24th day of the same month the Passaic County grand jury indicted O'Leary and five others for his murder. Daniel Collins and Herman Groth were arraigned on the same day the indictment was returned and pleaded not guilty, being admitted to bail in the amount of $25,000 each. According to the record before us, no other proceedings were ever taken against them. Three of the defendants, McDonald, Gatto and Pelicastro, were never apprehended.
O'Leary was arraigned on December 7, 1934. After a plea of not guilty, he was released in $10,000 bail and the case against him remained dormant until January of 1957, when Acting Prosecutor Joelson discovered the open indictment. On January 28, 1957 O'Leary was arrested. On February 7, 1957 he was admitted to bail on his own recognizance. The trial started on March 18, 1957.
Siegendorf, Dr. Whelan, Monks, Potosnak and McCann were the most important witnesses for the State. Szabo's
statement was received and the photograph of O'Leary he had identified in the hospital was admitted into evidence. The defendant did not take the stand and offered no evidence save for his insistence that the ...