State v. Donato

• Decision Date: 03 February 1930
• Docket Number: No. 81.,81.
• Citation: 148 A. 776
• Parties: STATE v. DONATO et al.
• Court: New Jersey Supreme Court

148 A. 776

STATE

v. DONATO et al.

No. 81.

Court of Errors and Appeals of New Jersey.

Feb. 3, 1930.

Dissenting Opinion Feb. 4, 1930.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Hudson County.

Frank Donato and another were convicted of murder in the second degree, and Frank McNally and another convicted of manslaughter, and they bring error. Affirmed.

William A. Kavanagh, of Hoboken, for plaintiffs in error.

John Drewen, Prosecutor of the Pleas, of Jersey City, for the State.

TRENCHARD, J. Frank Donato, Frank McNally, George Ormsby, and Vincent

O'Keefe (hereinafter sometimes referred to as the defendants), were indicted in the Hudson oyer and terminer court for the murder of Catherine McGee, a child of eight years, at Jersey City, on November 6, 1928.

Donato and O'Keefe were convicted of murder in the second degree and McNally and Ormsby of manslaughter, and were duly sentenced.

They sued out this writ of error and have filed numerous assignments of error and causes for reversal.

The evidence at the trial justified the jury in finding, if they saw fit, the following matters of fact:

At about 8:30 in the evening of November 6, 1928, a gang fight occurred on the sidewalk directly in front of Public School No. 2 on Erie street in Jersey City. Policemen were called there to disperse the fighters and the crowd that had assembled. There was standing at the time (at the curb nearest the school) an automobile, a Chandler sedan, the front of the car looking toward Fourth street. There was no other automobile there. When the fighters were dispersed, four disheveled men, one or two of them holding handkerchiefs to their mouths, were seen to get into this standing automobile hastily; and when they had done so, the car was Immediately driven away in the direction of Fourth street, which was about 100 feet away from where it had been standing. The events that followed and resulted in the killing of Catherine McGee took place within the space of less than a minute. The automobile, no one having left it after the four men had gotten in, was seen to turn east on Fourth street. When the car had gone about 25 feet into Fourth street from Erie street, the car was stopped, and at the same time the doors of the car were opened and two or more of its occupants—at least one of them having a handkerchief tied to his mouth— hurried out of it and ran directly to a group of persons who were standing on the sidewalk near the corner of Erie and Fourth streets. As they did so, a voice from the car was heard to call out: "Get the fellow with the cap!" In the group on the sidewalk at the time was one Whalen, wearing a cap. He knew none of the defendants and had had no trouble with them. The men leaving the car were each armed with a baseball bat. One of the men ran toward Whalen and upon reaching him raised his bat in the air and struck a violent blow at Whalen Whalen quickly stepped away to avoid the blow and it glanced from his arm. Catherine McGee happened along at this instant. The baseball bat that glanced from Whalen struck her on the head. It made a "terrible sound"; a "crash." The child fell on her face unconscious. She was taken to the hospital, where she died the next morning of a fractured and crushed skull. When the blow had been struck, the car almost immediately started. The assailant, and those who had left the car with him, fled back into it and the car was driven away. After the assault upon the child and while the assailant and his companions were running back toward the car, some one in the car was heard to call out: "Come on, Vince!" The men who got into the car after the fight in front of the school were the same men who were in the car when it was stopped on Fourth street. No one had left it, and those men were" the four defendants.

Such were the outstanding central matters of fact which the jury was legally justified in finding after a consideration of all of the evidence, including the confessions of the several defendants.

The defendants when on trial denied in effect any participation in the killing and offered some evidence which it is contended justified the inference that they were elsewhere.

We now deal with the several points argued by counsel for the defendants.

There was no error in the refusal of the trial court to quash the indictment, as contended by the defendants.

The indictment against the four defendants contained a count for murder in the language stated in section 36 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1832) to be sufficient in an indictment for murder, and a count for manslaughter in language stated in the same section to be sufficient in an indictment for manslaughter. Such an Indictment is constitutional and legal (Graves v. State, 45 N. J. Law, 203, affirmed 45 N. J. Law, 347, 46 Am. Rep. 778; Titus v. State, 49 N. J. Law, 36, 7 A. 621; Brown v. State, 62 N. J. Law, 666, 42 A. 811), and will not be quashed upon an objection, as here, that it did not set forth the manner or the means by which the death of the deceased was caused.

The defendants' motion to quash the indictment was also based upon the fact that the count for murder used the word "his" instead of "their." But the indictment was then amended in that respect. As originally presented it contained in the count for murder the words: "did wilfully, feloniously and of his malice aforethought, kill and murder." The amendment consisted in the change of the word "his" to the word "their," so that the passage was made to read: "did wilfully, feloniously and of their malice aforethought, kill and murder." The defendants then contended, and now contend, that the court had no power to make such amendment. Not so.

The amendment was a clerical error only. On the face of the indictment a charge of murder could be perceived against all four defendants. The power of amendment applies to a case where, as here, on the face of the indictment, a specific criminal charge can be perceived, which fails to be effective only by reason of an error, which, looking at the charge and averments of the indictment, the court can clearly infer was a clerical error. State v. Kern, 51 N. J. Law, 259, 17 A. 114; State v. Johnson, 91 N. J. Law, 611, 104 A. 593. Such power of amendment was conferred by section 44 of the Criminal Procedure Act, 2 Comp. St. 1910, p. 1834.

We think that the challenge to the array, based upon the contention that the struck jury was an illegal jury, was properly overruled.

The struck jury was drawn pursuant to the provisions of chapter 216 of the Laws of 1929. The statute reads: "When a rule for a struck jury shall be entered upon any indictment for murder, the court granting such rule may, upon motion of the prosecutor, or of the defendant, or on its own motion, select from the persons qualified to serve as jurors in and for the county in which any indictment was found, whether the names of such persons appear on the list of jurors prepared and selected by the commissioners of jurors of the persons qualified to serve as jurors in and for such county or not, sixty names, with their places of abode, from which the prosecutor and the defendants shall each strike twelve names in the usual way, and the remaining thirty-six names shall be placed by the sheriff in the box in the presence of the court, and from the names so placed in the box, a jury shall be drawn in the usual way."

Counsel for the defendants contend that there was no notice given of a motion for a struck jury and that no such motion was made. This contention is ill founded in point of fact. The record discloses that such motion was made on notice and was granted.

It is also contended that this statute, as applied in the present case, was an ex post facto law. We think that it was not.

Section 76 of the Criminal Procedure Act enacted by chapter 159 of the Laws of 1910 (2 Comp. St. 1910, p. 1845) was amended in 1916 (P. L. p. 386) and in 1919 (P. L. p. 618). Chapter 246 of the Laws of 1929—the statute in question—re-enacts almost literally the provisions of section 76 of the act of 1910 (P. L., p. 269), as it existed from 1910 until 1916. Prior to the 1929 act, and since 1919, the law as to struck juries in criminal cases was laid down in chapter 260 of the Laws of 1919 (P. L. p. 618). The essential change effected by the statute of 1929 is in the method of selecting the list of names from which the jury shall be struck in murder cases. Under the method prescribed by the 1919 act, the jury commissioners shall draw by lot 60 names from a list previously made and certified by them. From these 60 each side strikes 12, thus leaving a panel of 36 names from which the jury is drawn at the trial. Whereas the statute of 1929 provides that the court granting the rule for a struck jury in a murder case pursuant to section 76 of the Criminal Procedure Act selects "from the persons qualified to serve as jurors in and for the county in which any indictment was found, whether the names of such persons appear on the list of jurors prepared and selected by the commissioners of jurors * * * or not, sixty names," etc. From these 60 names the trial jury is finally obtained exactly as was the case under the act of 1919, and the number of peremptory challenges remains the same, as provided by section 81 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1846, § 81).

But the defendants said below, and say now, that the act of 1929 "changes the method of regulating peremptory challenges," and therefore is ex post facto if applied, as here, to any offense committed six months before the statute took effect. To this the answer is: First, that it does not change such method since it provides, as did the act of 1919 (P. L. p. 618), that the "jury shall be drawn in the usual way"; secondly, an ex post facto law is one which imposes a punishment for an act which was not punishable when it was committed, or imposes additional punishment, or changes the...