Biondo v. Allan

• Decision Date: 30 January 1945
• Docket Number: No. 233.,233.
• Citation: 132 N.J.L. 437,40 A.2d 810
• Parties: LO BIONDO v. ALLAN, Clerk of Court.
• Court: New Jersey Supreme Court

132 N.J.L. 437

40 A.2d 810

LO BIONDO

v.ALLAN, Clerk of Court.

No. 233.

Supreme Court of New Jersey.

Jan. 30, 1945.

Severina Lo Biondo was convicted in the Bergen County Court of Special Sessions of driving a motor vehicle and knowingly being involved in an accident, for failure to stop at the scene, and for not giving her name and address and exhibiting her operator's license and registration certificate of the vehicle to the person injured or struck, or to any police officer or witness to the accident, and she brings certiorari against Alexander Allan, Clerk of the Bergen County Court of Special Sessions.

Writ dismissed.

January term, 1945, before CASE, BODINE, and PORTER, JJ.

Chandless, Weller & Kramer, of Hackensack (Julius E. Kramer, of Hackensack, of counsel), for prosecutor.

Walter G. Winne, of Hackensack (Wallace S. DePuy, of Hackensack, of counsel), for defendant.

PORTER, Justice.

The prosecutor, Severina Lo Biondo, was convicted by Judge Del Mar in the Bergen County Court of Special Sessions on the charge of driving a motor vehicle and knowingly being involved in an accident, for failing to stop at the scene and for not giving her name and address and exhibiting her operator's license and registration certificate of her vehicle to the person injured or struck or to any police officer or witness to the accident, all of which is in violation of the statute, R.S. 39:4-129, N.J.S.A. The conviction is before us for review on writ of certiorari.

On the evening of September 13, 1943, Roberta Tumminia, six years old, was hurt in the street near her home in Garfield, was taken to a hospital, and died that evening as a result of her injuries. A short time before the child was found, Mrs. Lo Biondo drove her automobile past the scene, and both she and a woman passenger in her car had knowledge that an object had been struck by the car, because they both felt a bump under the wheels. Mrs. Lo Biondo observed to her companion at the time that she thought she had struck a cardboard box. She drove to her home around the corner but a short distance from the scene, there parked her car and went into the house for a moment, then went out to investigate what had caused the ‘bump.’ As soon as she went out of her side door, she says she heard a woman scream, and she called her husband and told him she thought she had run over a child. Her husband then reported the occurrence to the local police. On the testimony of the two women occupants of the automobile, together with the testimony of the father of the child of finding her injured in the street, we think the proofs clearly showed the fact to be that the prosecutor's car had struck the child, that she had knowledge of an accident which required her to stop and investigate, which she failed to do, in violation of the provisions of the statute supra.

The prosecutor argues that the conviction should be set aside because the court erred in permitting a ten year old child to testify, who, it is claimed, was incompetent because of her ignorance of the obligation of an oath. The child was examined on behalf of the State by the Assistant Prosecutor as to her qualifications, and the court concluded that she did not understand the nature of an oath and was not qualified. Later, the trial judge suggested that she be properly instructed and recalled. When recalled, she was again examined by counsel and by the judge, who concluded that she did understand the nature of an oath and was qualified to testify, and refused to allow counsel for the defendant to cross examine her on her qualifications. The qualification of the witness was a preliminary...