State v. Favorito

• Citation: 178 A. 765
• Decision Date: 17 May 1935
• Docket Number: No. 101.,101.
• Parties: STATE v. FAVORITO.
• Court: United States State Supreme Court (New Jersey)

178 A. 765

STATE

v. FAVORITO.

No. 101.

Court of Errors and Appeals of New Jersey.

May 17, 1935.

Syllabus by the Court.

1. In view of chapter 298, P. L. 1931, p. 741 (N. J. St. Annual 1931, § 53—83a), upon the trial of an indictment for murder every person summoned as a juror may be examined under oath, in open court, before being sworn as such juror, without the interposition of any challenge, upon such matters as shall relate to the competency of such person to serve as a juror in such trial.

2. Upon the trial of an indictment for murder it is competent for the prosecutor of the pleas to ask a person summoned as a juror on his voir dire whether he has religious or conscientious scruples against capital punishment.

3. Upon the trial of an indictment for murder, a person summoned as a juror who testifies that he has conscientious scruples against capital punishment is incompetent, and a challenge for cause is properly sustained, even though he was not asked and did not say whether his scruples would influence his verdict.

4. Upon the trial of an indictment for murder against one Favorito, one Wiese, who was an accomplice in the homicide, which occurred in 1934, testified as a witness for the state. Wiese had been convicted in 1930 of burglary and was sentenced by the judge then presiding. That judge's term expired, and when the homicide in question occurred he held no official position in the state. He was assigned by the present judge to represent Wiese in the homicide case. Wiese was asked on cross-examination this question: "And the judge who sentenced you is now your lawyer, is he not?" Held, that in the circumstances the question was irrelevant and was properly excluded.

5. The exclusion of a question will not result in reversal where, after the question was overruled, the witness was permitted to testify and did testify fully in answer to that very question.

6. A voluntary confession by a person accused of crime is one not extorted by any sort of threats or violence, or obtained by any direct or implied promises.

7. A finding of fact by the trial court as a necessary preliminary to the admission or rejection of a confession is not reviewable on error, if there be any legal evidence to support it.

8. The fact that the accused in a criminal case made a confession which was taken down by a stenographer does not render incompetent oral evidence by the state of another confession made at another time.

9. Upon the trial of an indictment for murder it was not erroneous for the court on the direct examination of the defendant to overrule the following question, "And who did you live with in your early life?" it apnearing that the question had already been answered in substance and effect, and that it had for its only purpose to show his "early life and bringing up."

Error to Court of Oyer and Terminer, Bergen County.

John Favorito was convicted of murder, and he brings error.

Affirmed.

Walter G. Winne and Rex B. Altschuler, both of Hackensack, for plaintiff in error.

John J. Breslin, Jr., Prosecutor of Pleas, of Lyndhurst, for the State.

TRENCHARD, Justice.

John Favorito, the plaintiff in error (hereinafter called the defendant), was convicted in the Bergen county court of oyer and terminer of murder in the first degree without any recommendation of life imprisonment, on an indictment for the murder of Emil Viborny, and sentence of death was imposed.

The defendant brings up the entire record and specifies causes for reversal, and also assigns error on exceptions.

The state's proof was to the effect that the defendant, accompanied by Charles Wiese and William Crum, drove to the gasoline station of the decedent. The defendant and Wiese were both armed with revolvers. They both went in the station and Crum remained outside as a lookout. The defendant ordered the decedent to hold up his hands and then robbed him of $4. The decedent resisted and was shot by the defendant and was hit an the head with the butt of the revolver handled by Wiese; and nine days afterward decedent died as a result of the gunshot wound.

It is not contended that the verdict was against the weight of the evidence, and we now examine the points made in the defendant's brief and argued.

The first point is that the procedure in selecting the jury was "illegal."

The sole basis of this objection is that the court allowed the prosecutor of the pleas to interrogate the persons summoned as jurors under oath, without requiring the interposition of a challenge, upon matters relating to the competency of such persons to serve as jurors.

We think there is no merit in the point.

Chapter 298, P. L. 1931, p. 741 (N. J. St. Annual 1931, § 53—83a), reads: "Upon the trial of any indictment for murder every person summoned as a juror may be examined under oath, in open court, before being sworn as such juror, without the interposition of any challenge, upon such matters as shall relate to the competency of such person to serve as a juror in the said trial. Such examination shall be conducted under the supervision and control of the trial court."

It is therefore quite certain that the course pursued by the prosecutor of the pleas was the course authorized by the statute. It was competent for the Legislature to so enact. Indeed, the defendant does not argue that the Legislature exceeded its powers in that regard.

The defendant's second point is that "there was error in the questions propounded to the jurors (by the prosecutor of the pleas) regarding capital punishment."

The question put to two of the persons summoned as jurors, on their voir dire, of which complaint is made, was: "Have you any religious or conscientious scruples against capital punishment?"

Of course it was competent for the prosecutor of the pleas to ask that question. State v. Juliano, 103 N. J. Law, 663, 138 A. 575.

The answer of the jurors was that they had such conscientious scruples.

But the defendant argues under this head that it was erroneous for the trial judge to sustain a challenge for cause against the jurors who had so answered.

We think that contention has been determined adversely to the defendant by this court in State v. Juliano, 103 N. J. Law, 663, 138 A. 575, 580, in the comprehensive and well-considered opinion of Mr. Justice Lloyd. Therein he points out that chapter 134 of the Act of 1919 (page 303), Comp. St. Supp. 1924, § 52—108, declares that: "Every person convicted of murder in the first degree * * * shall suffer death unless the jury shall by their verdict, and as a part thereof, upon and after consideration of all the evidence, recommend imprisonment at hard labor for life, in which case this and no greater punishment shall be imposed." Speaking for a unanimous court, Mr. Justice Lloyd further said: "It was the privilege of the state to contend before the jury under this statute that upon the evidence the crime was of such atrocity that the jury's verdict should be without recommendation. It was the right of the state to have jurors who would receive this contention with open mind, and when the jurors upon their examination disclosed that this phase of the case could not be so submitted to them, they were obviously disqualified to pass upon one of the phases of the evidence as to which they might or might not exercise the...