State v. Bovino
| Decision Date | 20 November 1916 |
| Docket Number | No. 123.,123. |
| Citation | 99 A. 313,89 N.J.Law 586 |
| Parties | STATE v. BOVINO. |
| Court | New Jersey Supreme Court |
Error to Court of Oyer and Terminer, Essex County.
Vincenzo Bovino was convicted of homicide, and he brings error. Affirmed.
McDermit & McDermit, of Newark, for plaintiff in error. Frederick F. Guild and Andrew Van Blarcom, both of Newark, for the State.
The plaintiff-inerror, Vincenzo Bovino, commonly known as Jimmy Bennett, was indicted for the murder of Frank Miserentino, commonly known as Frank Baker, who, on the night of April 21, 1914, was shot and killed in a dance hall in the city of Newark.
The affirmative defense of the accused was an alibi. At the trial witnesses for the state testified that a few moments before his death Baker in answer to the question, "Who shot you?" said, "Jimmy Bennett," which was admitted in evidence as a dying declaration.
The argument of counsel in support of the contention that it was error to admit this declaration is partly addressed to the admissibility of the testimony and partly to its credibility or force. With respect to the admissibility of proof as to a dying declaration the rule stated by this court in the case of State v. Monich, 74 N. J. Law, 522, 64 Atl. 1016, is as follows:
"Where a dying declaration is offered in evidence, the preliminary question of fact whether the declarant was under a sense of impending death is for the determination of the trial court, and its finding, if supported by any legal evidence, is not reviewable by ordinary writ of error."
State v. Monich was here on a strict writ of error. The present case is under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), as well. Whether the scope of review is thereby broadened need not be decided, since the judicial action in the present case was correct under either method of review.
It is true that the statement of Baker, "I am going to die," standing alone, was not conclusive proof that he was under a sense of impending death; it might mean that, or it might be the statement of a mere truism. The statement, however, did not stand alone; its concomitant circumstances showed, or so a court might find, in what sense the words were used. These circumstances were the persistent refusal of Baker, as long as he had hopes of living, to say who shot him; the sending at midnight for the officer at Baker's request; the reception of the last rites of the church; the fact that he was vomiting blood, and that in the opinion of those about him he was dying; and the fact that a few moments after making the declaration he was dead.
Not only was there legal testimony to support the finding that rendered the declaration of the deceased admissible, but such finding was amply justified by the weight of the testimony if this latter question be deemed to be before us. Having admitted the testimony as to what Baker said, the court properly left it to the jury to determine its truth and the weight to be accorded to it. This included not only the accuracy and truthfulness of the testimony as to what Baker said, but also Baker's bodily and mental condition at the time. This covers a number of assignments and specifications that were separately argued.
Counsel does not argue that the court left to the jury the question upon which the admissibility of the dying declaration depended, and for such an argument there would be no foundation in fact; hence the second point decided by State v. Monich is not involved. There was no error in the manner in which the offer of the dying declaration was dealt with by the trial court.
Anna Mae Gilling, a witness called by the state, having testified that she was in the dance hall at the time of the shooting, was asked to tell what happened. After answering this question in detail, she volunteered the statement:
"But I did not see Jim Bennett in the hall at the time of the shooting."
To enable the jury to determine what weight, if any, they should give to this...
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State v. Graziani, A--168
...U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), rehearing denied 351 U.S. 904, 76 S.Ct. 692, 100 L.Ed. 1440 (1956); State v. Bovino, 89 N.J.L. 586, 588, 99 A. 313 (E. & A. 1916); State v. Silverman, 100 N.J.L. 249, 252--254, 126 A. 618 (Sup.Ct.1924); State v. Goldman, 14 N.J.Misc. 463, 465, 1......
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