State v. Cerciello

• Decision Date: 25 June 1914
• Docket Number: No. 134.,134.
• Citation: 90 A. 1112,86 N.J.L. 309
• Parties: STATE v. CERCIELLO.
• Court: New Jersey Supreme Court

90 A. 1112

86 N.J.L. 309

STATE

v. CERCIELLO.

No. 134.

Court of Errors and Appeals of New Jersey.

June 25, 1914.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Essex County.

Angelo Cerciello was convicted of murder in the first degree, and brings error. Affirmed.

Frank M. McDermit, of Newark, for plaintiff in error. Louis Hood and Wilbur A. Mott, both of Newark, for the State.

MINTURN, J. The plaintiff in error was tried and convicted in the Essex oyer and terminer of murder in the first degree. The deceased, Elvira Cerciello, was his wife, 19 or 20 years of age.

The writ of error in the case brings up a strict bill of exceptions and the entire record of the proceedings had upon the trial.

May 30, 1913, in the morning about half past 6, while on his way to work, a witness saw the body of a woman lying flat on her face, near the path just through the edge of the woods. He stopped about 12 feet from the body, and then went to the stable where he worked and told another man what he had seen. The body was lying 300 or 400 yards from Grove street, and quite a distance from Bloomfield avenue. A telephone message was sent to the chief of police of Bloomfield, who arrived at the scene of the homicide between half past 7 and 8 o'clock.

It was also testified that there were footprints at that point for a distance of about 10 or 15 feet in circumference, and that there was a pool of blood under the neck of deceased where she laid. It was also shown that a comb and some hair and a handkerchief were found there. There was proof of the finding in close proximity to the body a hatchet, covered with blood, in whose niches was human hair of the color and texture of the hair of the deceased.

It was also in evidence that the defendant, on the night of the homicide, wore a sweater from which when it was found there was one button missing. A button corresponding to those on the sweater was found about 25 feet from where the body was found. From admissions made by the defendant to prisoners in the jail, it was clearly inferable, if the jury credited their testimony, that the defendant alone on the night in question induced his wife to go to the place where her body was found, and there murdered her with a hatchet.

The connecting links of this testimony and the circumstances surrounding the life of the defendant and his wife were substantially illustrated and connected by witnesses whose testimony in no way was impeached or whose creditability was not materially affected by a searching cross-examination. The defendant attempted to prove an alibi.

The state by a series of circumstances endeavored to show that, if the defendant possessed a motive for committing the crime, that motive was jealousy, arising out of the fact that when he married the deceased he knew she was not a pure woman; that she had a liaison with the son of a neighboring shoemaker, of whom he was jealous, and that he therefore possessed an innate feeling and doubt of her loyalty to himself. There was ample testimony adduced to sustain that view, presented by witnesses for the state, who detailed conversations with, and admissions of, the defendant, from whom such a state of mind might be properly inferred. One of these witnesses testified that about three weeks after his marriage, and some months prior to the homicide, the defendant said to the witness:

"If she keeps good all right. If not, with four strokes of a hatchet I will fix her."

There was no objection entered to this testimony, but, if there were, it was admissible as a threat showing an existing disposition, intent, or motive to commit the crime, if the exigency should present itself. 2 Best on Ev. 776, 21 Cyc. 890; Henderson v. State, 70 Ala. 29; State v. Day, 79 Me. 120, 8 Atl. 544; State v. Bradley, 64 Vt. 466, 24 Atl. 1053; Commonwealth v. Holmes, 157 Mass. 233, 32 N. E. 6, 34 Am. St. Rep. 270.

Remoteness in time is the objection now urged, but that fact furnishes an argument for consideration by the jury in weighing the evidence, but it does not always preclude its admissibility as evidence. 21 Cyc. 892; State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89; Redd v. State, 68 Ala. 492; Everett v. State, 62 Ga. 65.

A revolver was put in evidence by the state for the same general purpose of showing a predisposition and intent to commit the deed. Landisi, one of the state's witnesses, in a conversation with the defendant obtained this admission from him as his reason for failing to use the revolver:

"If I did use a revolver they will hear the shooting —the shot; they will hear the shot." "I ask him," said Landisi, "'Where did you put the revolver?' 'I put the revolver in the drawers of my brother, and the bullets or the cartridges I throwed them in the water-closet, so the authorities they can't find anything in the store.'"

The objection urged to the admission of the revolver extends to a bottle found a few yards from the body of the deceased. The bottle bore the odor of whisky. The witness Landisi testified that defendant told him:

"I prepared myself with the hatchet behind my pants and big knife and bottle of whisky; after I drank the whisky and I beginning to strike her with the hatchet, and I went away."

The connection between the revolver and the whisky bottle and the defendant's criminal attitude regarding the deceased and his preparation for the commission of the deed were thus sufficiently evinced and connected as to make it apparent that both the articles were properly admitted in evidence as bearing upon the defendant's state of mind and the truth of his admissions. 21 Cyc. 898, and cases cited; State v. Hill, 65 N. J. Law, 627, 47 Atl. 814.

The defendant's contention that the testimony of one Gelsomnia Longo was immaterial and irrelevant, but nevertheless was admitted by the court, upon condition that the prosecution would thereafter show its materiality by connecting it, which the state failed to do, is not substantial; since, while the testimony was not stricken out, it was characterized by the defendant as irrelevant and immaterial, and, being such, it was confessedly noninjurious to him.

Certain magnifying glasses were offered in evidence by the state, without objection by defendant. The glasses had been used by an expert on the trial to assist to detecting what was alleged to be the impression of defendant's finger prints, upon the hatchet. The history and quality of the lenses were fully explained by the expert. They were stronger in their magnifying intensity than the ordinary magnifying spectacles which jurymen and the general public use in the affairs of everyday life, and of such matters the court is presumed to take judicial notice. Stephen on Ev. p. 314.

In the absence of proof that the glasses might in some measure unfairly prejudice...