State v. Banusik

• Decision Date: 19 November 1906
• Citation: 64 A. 994,84 N.J.L. 640
• Parties: STATE v. BANUSIK.
• Court: New Jersey Supreme Court

64 A. 994

84 N.J.L. 640

STATE

v. BANUSIK.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1906.

Error to Court of Oyer and Terminer, Essex County.

Frank Banusik was convicted of murder in the first degree, and brings error. Affirmed.

James M. Trimble, for plaintiff in error. Henry S. Young, Prosecutor of the Pleas, for the State.

GUMMERE, C. J. The Indictment in this case charges the defendant with the willful murder of Thomas Hoff on the 8th day of January last, at the town of Bloomfield, in Essex county. The trial resulted in the conviction of the defendant of murder in the first degree. The entire record of the proceedings had upon the trial has been brought up by the writ of error, pursuant to the 136th section of the criminal procedure act of 1898 (P. L. p. 915).

The following facts, among others, were proved by the state at the trial: The defendant, who was a Pole, was a boarder in the home of Hoff in the town of Bloomfield, and they were in the habit of drinking together on occasion. Some two months before the death of Hoff, the defendant instructed the barkeeper of a saloon kept by one Rosenstein, which they at times patronized, to furnish him with water when he called for gin, as he had a bet of $5 with Hoff that he could drink more liquor than the latter. On the afternoon of Sunday, the 7th of January, the defendant, with Hoff and a fellow countryman named Baranoski, left Hoff's house and proceeded to Rosenstein's saloon, which they reached between 5 and 6 o'clock. They remained there drinking until about 10 o'clock in the evening. The defendant drank gin, which was diluted by the bartender with water. After leaving the saloon they went to Baranoski's house. Hoff, upon arriving there, was so drunk that he was unable to sit in his chair, and fell from it onto the floor. Baranoski proposed to put a coat under his head, and "let him sleep until he felt better," but the defendant said, "This is my boarding boss; I will take him home;" and took him away from Baranoski's house. They left shortly after midnight. Thereafter no one who knew Hoff, with the exception of the defendant saw him until about a half hour later, when his mutilated body was discovered on a railroad track a short distance away. About 1,000 feet from Baranoski's house a path leads from the avenue upon which it is located to the Delaware, Lackawanna & Western Railroad. The road is elevated above the surrounding territory. A few minutes before half past 12 o'clock on the morning of January 8th Nicholas Hinz and a companion were passing from Bloomfield to Watsessing, in a southerly direction, upon this railroad track. Hinz saw two men coming along the path referred to, and climbing up the embankment onto the railroad track. After he and his companion had proceeded some distance along the track he heard a noise behind him as of men quarreling, and, upon looking back, observed the men, whom he had previously seen, walking along the embankment. He paid little attention to them, however, but went on his way with his companion. On his return from Watsessing, some 20 or 25 minutes later, he saw the dead body of Hoff lying on the eastbound railway track, near the place where he had last seen the two men. A railway train proceeding from Bloomfield to Hoboken, between half past 12 and 1 o'clock in the morning, had, in the meantime, passed over the body of Hoff, and "crushed off" his legs. As this train, which consisted of an engine and a single freight car, was approaching the spot where Hoff was afterwards found, the body of a man was seen by the trainman lying face upward on the track. The emergency brake was immediately applied, but the train passed over him, stopping, however, within a few feet after it had done so. The engine had no cowcatcher, and the bottom of the engine, and that of the car, were elevated about 14 inches above the ties, affording sufficient clearance room for the train to pass over the body of a man lying flat between the rails, without inflicting injury upon him. After running over Hoff the crew of the train immediately went back to where the body lay, and found that he was still alive, but he died a few minutes later. An autopsy subsequently performed upon the body showed that, in addition to the injury to his legs, Hoff had sustained two extensive fractures of the skull, one on the right side, and the other on the back of the head. The character of those fractures, and their appearance, indicated to the experts performing the autopsy that they were produced either by the train which ran over Hoff, or by some heavy blunt instrument. After his arrest the defendant made a written confession of the crime with which he is charged, and later, during a conversation which he had with one of the officers in whose presence the written confession was made (and who was a fellow countryman), he requested him to write to his people in the old country, and tell them that he was sick, and, if he should be sentenced to be hanged for the crime, to tell them that he had died a natural death. He also informed the officer that he wanted to marry Hoff's wife, and had it in his mind to kill him long ago, and that he picked up a mallet for that purpose and put it in his inside pocket when he went off Sunday afternoon. He also informed the officer on that occasion, in response to a question asked of him, that he knew there was a train due on Sunday night, because, when he and Hoff were leaving Baranoski's house, there was a train going up. and he knew it had to come back again. The first reason advanced on behalf of the defendant for setting aside the conviction under review is that the trial court erred in permitting the state to prove, by the bartender from Boseustein's saloon, the instructions given by the defendant to him some two months before, to serve him (the defendant) with water when he ordered liquor, the ground of objection being that the incident was too remote to have any bearing on the matter in issue, and was, therefore, irrelevant. We are unable to take this view of the testimony. The theory upon which the case was tried by the state was that the motive which induced the defendant to take the life of Hoff was the illicit love which he had for Hoff's wife, and that the intent to kill Hoff was conceived by him a considerable time before it was carried into execution. The fact that he gave the instruction to the barkeeper had some tendency (even if slight) to show that, at that time, he had conceived the idea, and that, for the purpose of consummating it, had formulated the plan of reducing Hoff to such a condition of intoxication as to render him incapable of successfully resisting an attack upon him. The evidence was relevant for another purpose: The written confession made by the defendant contains the following statement: "I told the bartender to give me water when I called for gin." The confession fails to disclose when it was that the defendant gave this instruction to the bartender, but the connection in which it appears suggests that it was given in the evening, just preceding the alleged homicide. The confession contains the further statement that the defendant had it in his mind to kill Hoff for about two or three months. The evidence of the barkeeper is confirmatory of the truth of the statement first quoted from the confession, and explanatory of it so far as the time of the giving of the instruction is concerned, for the testimony of the bartender was to the effect that the instruction was not given to him on that evening. The evidence also tends to confirm the truth of the second statement quoted from the confession—that the defendant formed the intention of taking Hoff's life two or three months before carrying it into execution.

The next ground for setting aside the conviction is that the written confession of the defendant was improperly admitted in evidence: First, because the statements contained in the writing were not proved to have been made by the defendant; and, second, because it was not shown that the confession was voluntarily made by him. The first of these reasons has no support from the facts in the case. The confession was made in the presence of Detective Devita of the prosecutor's office, and of Police Magistrate Cadmus, Chief of Police Collins, and Officers Plum and Shorter. The defendant was interrogated by Devita upon the subject-matters contained in the confession, the question being put in English. The questions were then translated into Polish, the language spoken by the defendant, by Officer Blum, who was a fellow countryman of his. The questions were then answered by the defendant in his native language, and his answers translated into English by Blum. Each question and answer was reduced to writing, in English, and in narrative form, by Magistrate Cadmus, as it was asked and given, and then read out by the latter. What was read by the magistrate was then translated into Polish by Blum, and the defendant asked by him if that was right, and the defendant, in each instance, answered that it was. This was done "all the way through," la the language of the witnesses, and when the taking of the confession had been completed, and entirely written out, the writing was signed by the defendant Blum, upon the witness stand, testified to the correctness of his interpretation. It is difficult to imagine how a confession could have been reported more accurately, or more care taken to avoid mistake or misunderstanding. A statement similarly taken down was held to be admissible, as the statement of the defendant, by this court, in the case of State v. Abbatto, 64 N. J. Law, 660, 47 Atl. 10.

The contention that the confession was not voluntarily made is also unsupported by the proofs. It was made at the police station, after the arrest of the defendant for the murder of Hoff. Shortly before it was made, Office Blum, in a conversation which he had with the defendant in the hitter's cell,...