State v. Bunk

• Decision Date: 24 April 1950
• Docket Number: No. A--59,A--59
• Citation: 73 A.2d 245,4 N.J. 482
• Parties: STATE v. BUNK et al. a.
• Court: New Jersey Supreme Court

Page 482

4 N.J. 482

73 A.2d 245

STATE v. BUNK et al.

No. A--59a.

Supreme Court of New Jersey.

Argued April 10, 1950.

Decided April 24, 1950.

Edward J. Gilhooly, Newark, argued the cause for the appellant Bunk, (James L. McKenna, Newark, attorney).

Louis Auerbacher, Jr., Newark, argued the cause for the appellant Jellison.

Edward J. Gilhooly, Newark, argued the cause for the appellant Smith.

Duane E. Minard, Jr., Newark, argued the cause for the State, C. William Caruso, Newark, on the brief.

The opinion of the court was delivered by

OLIPHANT, J.

Defendants-appellants were convicted of murder in the first degree without recommendation and the death penalty was imposed. An appeal was taken to this court and argument was heard thereon on January 3, 1950, but before the opinion was handed down the defendants made application to this court for a new trial or to have the cause remanded to the Essex County Court, where the trial had been held, so that they might make application there for a new trial on the basis of newly discovered evidence. By order dated January 23, 1950, the cause was remanded to the trial court for the purpose of the defendants making their application there pursuant to Rule 2:7--11. The motion was heard by Judge Francis, who had presided at the trial, on affidavits, briefs and argument, and in an opinion in which he fully reviewed the facts in the case and the law applicable thereto it was denied by order dated February 15, 1950. This appeal is from that order.

The motion was predicated upon the affidavit of Thomas Yanuzzi, one of the holdup gang, who fled after the murder on August 8, 1948, and who was not apprehended until March 8, 1949, in the State of Texas, after the trial and conviction of his co-conspirators, the defendants here. This affidavit was made January 11, 1950 and sets forth that:

'3. I was present at the Penn Tavern, in the City of Newark, on August 8, 1948, and as I was running out of the tavern, an unknown person, who was standing at the front end of the bar, near the vestibule, held a gun in his hand which he fired, in the direction of the shuffleboard room. As I ran past this unknown person, the powder burns from the shot which he fired scarred the tissue on my face, causing it to swell in the area over my left eye. The person who fired this shot was neither Smith nor Bunk. I recall that at the time that I ran from the tavern the defendant Smith was grappling at the bar with two patrons.

'4. I believe that I could identify the person who fired the shot as I ran from the tavern if I saw him again.'

It is supported by two other affidavits, one by a cousin of Yanuzzi, one Rusignola, an attorney at law of this State, who says that on August 8, 1948, he observed that Yanuzzi had a bruised hand and a burn and discoloration over his left eye and another by one Racioppi, who states that on the same day he observed a red blotch over Yanuzzi's left eye.

Counter-affidavits were presented by Captain of County Detectives Cocozza, Lieutenant of County Detectives McLaughlin and Lieutenant of Police Wangner, all of whom went to Texas to return Yanuzzi to this jurisdiction. These show that in their interview with Yanuzzi in Texas and during the return trip he failed to state anything about an unknown person having fired any shots in the Penn Tavern but did give his story of the events that happened there up to a time when he claimed to have 'blacked out'. He said he had heard but one shot which came from the shuffleboard room and that after this he blacked out and knew nothing until he came to in the getaway car.

A motion for a new trial is addressed to the sound judicial discretion of the trial court. Such judicial discretion cannot be arbitrary, vague or faciful but rather must be governed by and in accord with established principles of law. Concisely it is concerned with the question whether justice requires that relief be given under the particular facts established. State v. Then, 114 N.J.L. 413, 177 A. 87 (Sup.Ct.1935); La Bell v. Quasdorf, 116 N.J.L. 368, 184 A. 750 (Sup.Ct.1936); State v. Hunter, 4 N.J.Super. 531, 68 A.2d 274 (App.Div.1949); State v. Hogan, 1 N.J. 375, 63 A.2d 886 (Sup.Ct. 1949); State v. Collins, 2 N.J. 406, 67 A.2d 158 (Sup.Ct.1949). The exercise of such discretion will not be disturbed on appeal or review unless it has been clearly abused. State v. Collins, supra. So in reality there is but the single question before us: Was there an abuse of sound judicial discretion in the denial of the appellant's motion by the learned trial court?

It is agreed by both the appellants and the State that the tests necessary to be met to entitle a party to a new trial on the ground of newly discovered evidence are as enunciated in State v. Hunter, supra, that the new evidence (1) must be material to the issue and not merely cumulative, nor impeaching nor contradictory; (2) that it has in fact been discovered since the former trial and could not have been discovered before such trial by the exercise of due diligence; (3) that it would probably change the result if a new trial was granted. This rule is amply supported by the authorities. Christie v. Petrullo, 101 N.J.L. 492, 128 A. 853 (Sup.Ct.1925); Paradise v. Great Eastern Stages, Inc., 114 N.J.L. 365, 176 A. 711 (E. & A.1934); Albrecht v. Raab, 127 N.J.L. 292, 22 A.2d 339 (E. & A.1941); Rooney v. Herrmann, 27 A.2d 650, 20 N.J.Misc. 335 (Cir.Ct.1942); Wilkotz v. Ziss, 137 N.J.L. 3, 57 A.2d 568 (Sup.Ct.1948).

It is conceded the proffered evidence meets the first two tests so that we are concerned with whether or not it meets the third. It is claimed by appellants that this is too harsh a rule and reliance is placed on the case of State v. Lammens, 3 N.J.L. 100, 251, wherein it is claimed it was held that the right to a new trial should not depend upon the probability of a different result being reached but the possibility thereof. An examination discloses that the statement said to have been made by Mr. Justice Depue in that case is not taken from a written opinion nor is it a direct quote from the stenographic record. It is the reporter's version of what was said and the full note sets out that the Justice said a new trial would be ordered if 'the evidence is newly discovered and might have led the jury to a different conclusion, And ought to have done so.' (Italics supplied). By the use of these words it is clear that what the jurist had in mind was that the new evidence would probably change the result.

This language is much the same as that used in State v. Stain, 82 Me. 472, 20 A. 72, 77 (Maine 1890) where it was said 'and it is a well-established rule that a motion for a new trial should not be granted on the ground of newly-discovered evidence, unless the evidence is such as ought to produce, on another trial, an opposite result upon the merits.' The great weight of authority is in conformity with the rule of probability rather than possibility. People v. Shilitano, 218 N.Y. 161, 112 N.E. 733, L.R.A.1916F, 1044 (N.Y.1916); State v. Goldberger, 118 Conn. 444, 173 A. 216 (Conn.1934); State v. Irons, 137 Me. 294, 18 A.2d 798 (Maine 1941); Common v. Greenfield, 102 Pa.Super. 489, 157 A. 50 (Pa.1931); 23 C.J.S., Criminal Law, § 1461, page 1253; State v. Reynolds, 96 Vt. 37, 116 A. 116 (Vt.1922).

The same rules or tests apply in both civil and criminal causes. A rule of civil practice, 3:60--2, empowers the trial court to grant a new trial for 'newly discovered evidence which would probably alter the judgment * * *' while a rule of criminal practice, 2:7--11, provides that the court 'may grant a new trial to a defendant if required in the interest of justice.'

Because the two rules are couched in different language is no indication on the part of the Court to apply different tests in civil and criminal causes, to abandon the long standing rules applicable to new trials on the ground of newly discovered evidence or to apply more liberal tests in criminal cases than in civil causes.

Our rule of criminal practice was taken from Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Prior to the adoption of this rule the practice in the federal courts with respect to new trials for newly discovered evidence was precisely the same as in this state. The same elements had to be established. Cyclopedia of Federal Procedure, 2d Ed. Vol. 9, Sec. 4505; Glenberg v....