State v. Fiore

• Decision Date: 17 November 1913
• Citation: 85 N.J.L. 311,88 A. 1039
• Parties: STATE v. FIORE.
• Court: New Jersey Supreme Court

88 A. 1039

85 N.J.L. 311

STATE

v. FIORE.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1913.

(Syllabus by the Court.)

Kalisch, J., dissenting.

Error to Court of Oyer and Terminer, Essex County.

Antonio Fiore was convicted of murder in the first degree, and brings error. Affirmed.

Frank E. Bradner, of Newark, for plaintiff in error.

Louis Hood and Wilbur A. Mott, both of Newark, for the State.

BERGEN, J. This writ of error questions the legal propriety of proceedings which resulted in the conviction of the defendant of murder in the first degree. The indictment contains three counts, the first of which charges, in the words of the statute, that Maddalena Ciccone and the defendant did kill and murder Leonardo Ciccone; the second, that Maddalena Ciccone did kill and murder the decedent, and that this defendant did procure, aid, abet, and counsel her to commit the murder; the third, that the said Maddalena Ciccone, knowing the same to be a deadly poison, mixed arsenic in coffee which she had prepared for the use of decedent, and administered the same to him, by means whereof his life was taken, and that this defendant, Antonio Fiore, "before the felony and murder aforesaid," did procure, abet, and counsel the said Maddalena Ciccone to murder her husband. It appears by the record that the defendants named in this indictment were given separate trials, and that Maddalena Ciccone, who was the wife of the decedent, was first tried and convicted of murder in the first degree, and that thereafter this defendant was put upon trial, during which the errors assigned are alleged to have occurred.

It is first urged for error that the trial court, over the objection of the defendant, admitted in evidence the judgment of conviction of Maddalena Ciccone, which it is insisted was irrelevant and injurious to the defendant. The claim made by the state was that the wife had administered to her husband poison which caused his death, and, although the poison was administered when the defendant was not actually or constructively present, the crime was induced by his counsel and advice, whereby he became an accessory to the murder, of which he could not be convicted unless it appeared that his principal was guilty of the crime which he was charged with aiding, abetting, and counseling. To prove this the record of the conviction of the principal was offered and admitted. That such record is competent prima facie evidence tending to prove that the murder which the defendant is charged with counseling and procuring was in fact committed by his principal cannot be doubted. It is not conclusive, but is some evidence of the guilt of the principal which it was competent for the state to offer. Gr. Ev., vol. 3, § 46; Levy v. People, 80 N. Y. 327; Ency. of Ev., vol. 1, § 75, and notes.

The case of State v. Brien, 32 N. J. Law, 414, which the defendant cites, has no bearing upon the point at issue, for the question there was whether a defendant could testify at the separate trial of his codefendant. The court there held that the defendant was a competent witness, but under the circumstances of that case his testimony could not be used against him, nor could the judgment of conviction or acquittal of his codefendant be received in evidence either for or against him when his case came to trial. But that was an entirely different situation from the present case, where one of the elements necessary to the conviction of the accessory is the guilt of his principal. On this point the record discloses no error.

The next point urged is the admission of testimony tending to show illicit relations existing between the defendant and his principal. The defendant's counsel concedes that on the trial of a husband or wife for the murder of the spouse, evidence of unlawful relations is competent upon the question of motive, but urges that in this case motive was of no consequence. We are of opinion that motive was a relative element, because if the husband was killed an obstruction which might prevent, or was at least likely to interfere with, the continuance of the illicit relations existing between the codefendants would be removed.

Objection is made to the admission of a conversation between Maddalena, the wife, and her daughter, based upon the following circumstances: The defendant, being imprisoned, requested the wife of the deceased to come and see him, but instead of doing this, she sent her daughter to the jail, where she saw and conversed with the defendant The daughter testified that the defendant instructed her to tell her mother to poison her husband, and that if she did not, he would kill her when he got out of jail, and that this she told her mother. The objection made to this is that while the conversation she had with the defendant would be competent, the repeating of the instructions to her mother was not. Assuming that the child carried the message to her mother as given to her by the defendant, and that question was left to the jury, the witness was a messenger used by the defendant to communicate his instructions to the mother, and it was as efficient a communication as if written. If, when the incitement to commit a crime is communicated to the principal orally by a third person, at the request of the defendant, proof of such communication to the principal, as requested and intended, be rejected, an easy method of escape from the responsibility in such cases would be provided. It is sufficient if the criminal advice and counsel, given by an accessory with intent that it be followed, be communicated to the principal by word, act, or deed. As it is required that the counsel of an accessory to commit a crime be communicated to the one who is to act as principal, proof that such instructions were given by the accessory to his principal through the agency of a third person, selected by him for that purpose, is competent, although the communication was, and was intended by the defendant to be, orally communicated. Such communication is as efficient as if sent in writing; the only substantial difference in the methods being facility of proof.

The next point is that the trial court overruled a question put to Maddalena for the purpose of ascertaining whether counsel who defended her on her trial had told her that she would not have to go to the electric chair. In the record it appears that there was some discussion whether this was a privileged communication, and the court instructed the witness that under the law all communications which passed between her and her counsel were privileged, and that she did not have to state anything said to her by him. To this the witness replied, "All right," and there the examination was dropped. No objection was made to the instruction given by the court to the defendant, nor could one well have been made by the defendant, because the ruling was favorable to the contention which he was then making. After the foregoing reply by the witness, the subject was not pursued. No error appears as a basis for this assignment.

The next objection rests upon the admission of the testimony of a Mr. Baldwin, a chemist, concerning the contents of a box containing rat poison. He was asked: "Q. Did you make an examination of the contents of that box? A. I did, sir. Q. And what did you find the contents to be?" Here an objection was interposed by the defendant, based upon the claim that the box which contained the rat poison, charged to have been used by Maddalena to poison her husband, was thrown into an alley between two houses, and could not or was not produced, and that the contents of another box was no evidence of the character of the material contained in the one from which it was claimed the wife had taken the poison administered to her husband. There was evidence that the rat poison contained in the box, the contents of which the wife administered to her husband, was of the same character as that which the witness had analyzed, and that the poison was a well-known article, made in considerable quantities, put up by the manufacturers in similar boxes, one of which the wife had purchased, and that each contained about 90 per cent. of commercial powdered arsenic. The case shows that this poison was not prepared by the wife, but purchased as a commercial product, which was always put up in the same kind of boxes, and all contained the same amount of arsenic; and the purpose of this testimony was to show that this commercial preparation, a part of which was in the box sold to the wife, contained arsenic. The competency of this evidence cannot be doubted, and its reception was not error.

The next error assigned is the admission of certain letters, three in number, alleged to have been signed by this defendant, addressed, and intended by him to be delivered, to Maddalena Ciccone. There was testimony tending to show that two of them were written in the English language by Ralph Rollo, a prisoner in the jail where this defendant was confined. Rollo who could speak and write the English as well as the Italian...