State v Fiore

• Decision Date: 14 June 1920
• Docket Number: No. 45.,45.
• Citation: 110 A. 909
• Parties: STATE v. FIORE et al.
• Court: New Jersey Supreme Court

110 A. 909

STATE

v. FIORE et al.

No. 45.

Court of Errors and Appeals of New.

June 14, 1920.

(Syllabus by the Court.)

Error to Supreme Court.

Louis Fiore and Ciro Matarazzo were convicted of murder in the second degree. The conviction was affirmed by the Supreme Court on error (108 Atl. 363), and they bring error. Affirmed.

J. Victor D'Aloia and Carl Abruzzese, both of Newark, for plaintiffs in error.

Pierre P. Garven, Prosecutor of the Pleas, of Jersey City, for the State.

PARKER, J. The defendants below, together with one Devlin, were convicted of murder in the second degree. The general circumstances of the crime are stated in the opinion of the Supreme Court and need not be here repeated.

The points pressed here are the same dealt with by the Supreme Court, viz. the admission of a photograph of the body of the deceased, and alleged error in excluding manslaughter from the consideration of the jury.

With respect to the photograph, we agree with counsel for plaintiffs in error that its admission cannot be justified for the first reason given by the Supreme Court, which was that the defense in effect utilized or treated it as evidence and could not then be beard in objection to it. This reasoning is not supported by the testimony before us. But the photograph was competent evidence. It was admitted only after the county physician, who had made an autopsy on the body, had testified that he recognized the picture as a photograph of the body examined by him, and which was concededly that of the slain man. Dr. Joyce, who had attended him after the injury and until he died, also testified to the correctness of the picture, especially as showing the injuries to the head which caused death. This was a full compliance with the rule declared in the Supreme Court case of Goldsboro v. Central R. R. Co., 60 N. J. Law, 49, 37 Atl. 433. See Wigm. Ev. §§ 793, 794. In fact, the only objection made was that the photograph and the conditions under which it was taken were too remote from the day of the alleged occurrence, being after the autopsy. That question was mainly, if not entirely, one of discretion of the trial court, and, as the attempt was to show the character of the injuries, there cannot be any doubt that such discretion was properly exercised.

On the other point, the elimination of manslaughter from the consideration of the jury, we agree substantially with the views of the Supreme Court. Upon the evidence there could be no room for a verdict of...