State v. Gallo

• Decision Date: 26 February 1942
• Docket Number: No. 4.,4.
• Citation: 24 A.2d 557,128 N.J.L. 172
• Parties: STATE v. GALLO.
• Court: New Jersey Supreme Court

24 A.2d 557

128 N.J.L. 172

STATE

v. GALLO.

No. 4.

Supreme Court of New Jersey.

Feb. 26, 1942.

Error to Court of Quarter Sessions, Somerset County.

Frank Gallo was convicted of keeping, and aiding and abetting the keeping of, a gambling house, and he brings error.

Affirmed.

October term, 1941, before BROGAN, C. J., and CASE and HEHER, JJ.

Edmund A. Hayes, of New Brunswick, for plaintiff-inerror.

John H. Beekman, Jr., Prosecutor of the Pleas, and Joseph Halpern, Asst. Prosecutor of Pleas, both of Somerville, for defendant-inerror.

BROGAN, Chief Justice.

The plaintiff-inerror, Frank Gallo, was convicted in the Somerset County Court of Quarter Sessions and sentenced to fine and imprisonment. The indictment on which he was convicted contained eight counts charging that the defendant, on four certain days in January and February, 1941, kept a gambling house and on those same days aided and abetted the keeping thereof. Thus in alternate counts he was charged as principal and accessory.

The entire record is returned with the writ of error. The appeal was not argued but was submitted on brief. The plaintiff-inerror, in his brief, assigns error on certain exceptions taken at the trial and causes for reversal are specified. These points are seven in number and five assert error in the refusal of the learned trial judge to postpone or adjourn the trial.

Gallo was indicted on February 13, 1941, entered plea of "not guilty" on February 21, 1941, and the trial of the indictment moved on March 12, 1941. These dates assume significance in the light of the argument advanced on some of the points made for reversal. On the day set for trial, counsel in the person of Edmund A. Hayes appeared for the defendant and requested an adjournment, giving as his reason therefor that he had been retained in the case only two days previously and was unable in so short a time to get ready for trial; further, that the defendant had advised him that the case would not be moved until the following week. The state's attorney opposed the application on the ground that it was not timely and that Gallo had been represented up to then by two other attorneys, both of whom were in court when the trial was moved. The motion for postponement was denied.

It is first argued that the trial court "committed manifest and prejudicial wrong and error" in denying this application. A subordinate point under this heading is that because postponement of the trial was refused, plaintiff-inerror was deprived of an opportunity to produce certain non-resident witnesses. To justify the request for postponement Mr. Hayes called Samuel Chiaravalli, a member of the bar of this state, as a witness who testified: that he had been counsel of record for Gallo and that previously he wanted the trial date deferred because he was obliged to undergo an operation; that at that time he advised his client to get new counsel; that at or about the time he left the hospital Gallo said he would like him to try the case and this he promised to do if he was able, but, in the meanwhile, other counsel was retained, a Mr. John Macko (also present when the trial was moved); that on the previous day, namely, March 11, he told the defendant he would not be able to appear for him, saying: "I don't know whether you want to continue to have Mr. Macko or what but you had better get counsel." It is to be noted that all three attorneys, Messrs. Hayes, Chiaravalli and Macko, are listed in the record as counsel for the defendant.

The matter of postponement of a trial is one that is singularly within the sound discretion of the court. Plaintiff-in-error concedes this but argues that the refusal amounted to an abuse of discretion, citing State v. Lynch, 103 N.J.L. 64, 134 A. 760. The denial of a postponement should not lead to a reversal unless it appears that the defendant suffered manifest wrong or injury by such refusal. State v. Doro, 103 N.J.L. 88, 93, 134 A. 611; State v. Juliano, 103 N.J.L. 663, 138 A. 575; State v. Zied, 116 N.J.L. 234, 239, 183 A. 210. The issue in this case, from our reading of the record, seems to have been tried fully and comprehensively. We cannot perceive that the plaintiff-inerror suffered harm by the denial of a postponement. It is clear, too, that Mr. Chiaravalli had or should have prepared this case for trial and that he expected to try it since it was only on the day preceding the trial that his indisposition led him to suggest that his client get other counsel. He admitted that he did not "expect to find other counsel" in the case on the day of the trial; this "surprise" on his part leads us to conclude that he himself expected to try the case. Again, Mr. Chiaravalli was present during the entire trial as was Mr. Macko. If Mr. Chiaravalli was ready to try the case—and it is not said that he was not—certainly he was sufficient aid to trial counsel if aid was needed. An eleventh hour change of counsel is not, standing alone, a valid reason for an adjournment. The abuse that would result from such rule is obvious. Under this heading it is also argued that the defendant was deprived of the opportunity to produce certain witnesses, one of whom was in Philadelphia. The point has no substance whatever. It is not even said in this connection that such witnesses were material or that they would have lent any support to the defense. But along with all this we cannot overlook the fact that Mr. Chiaravalli is presumed to have prepared the case; that he anticipated trying the issue and that in the normal course he would or should have arranged for the appearance of all defense witnesses, especially those from outside the state. The learned trial judge had these circumstances and conditions in mind when he refused an adjournment and his ruling was not an abuse of discretion.

The next argument is that it was error to refuse an adjournment because of a remark made by the assistant prosecutor in the presence of the jury panel before the jurors were selected. That situation arose in this fashion: The assistant prosecutor opposed the adjournment and said he had had no notice of it and that if he had been informed a day or two previously his attitude might have been different. He called attention to the fact that the defendant had two attorneys in court besides Mr. Hayes, who was trial counsel, and then remarked: "* * * As late as yesterday afternoon Mr. Macko spoke to the court with reference to this case and a possible plea by this defendant * * *"; whereupon trial counsel said that the statement of the assistant prosecutor was so prejudicial and harmful that "under no circumstances can this court continue to hear this trial before this jury." Again motion for postponement was made. The trial court rejected it, and properly so. The statement of the assistant prosecutor was made to impress the court with the fact that as recently as the day before Mr. Macko appeared in court as counsel for the defendant. It is not said that the assistant prosecutor's statement was untrue and we find nothing that persuades us that what was said could have unquestionably prejudiced the jury against the defendant or just how the defendant was injuriously affected; Cf. State v. Shupe, 86 N.J.L. 410, 92 A. 53, affirmed 88 N.J.L. 610, 97 A. 271; nor is there proof that the panel of jurors heard the remark. However that may be, the learned trial judge was careful to safeguard defendant from any injury in this connection. When the trial judge began his charge to the jury he said: "You will recall that there was considerable discussion between court and counsel in the impaneling of this jury. I charge you that nothing that was said on that occasion is to be considered by you in your deliberations in respect to the guilt or innocence of the defendant and * * * the facts that you are to judge are those presented to you from the lips of witnesses sworn in this trial."

It is said under the third point that the court erred in refusing a...