State v. Genese
| Decision Date | 19 October 1925 |
| Docket Number | No. 75.,75. |
| Parties | STATE v. GENESE. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Court of Oyer and Terminer, Somerset County.
Daniel Genese was convicted of murder in the first degree without recommendation of life imprisonment, and he brings error. Affirmed.
Frederick Pope, of Somerville (Edward M. Salley, of Jersey City, on the brief), for plaintiff in error.
Azariah M. Beekman, of Somerville, and James I. Bowers, Prosecutor of the Pleas, of Somerville, for the State.
The plaintiff in error, Daniel Genese, was indicted in the court of oyer and terminer of Somerset county for the murder of Robert Coyle, a member of the state police force, in that county. He was convicted of murder in the first degree, and, no recommendation of life imprisonment being made by the jury, he was sentenced to death. He now brings up for review that judgment, both by bill of exceptions and by specifications of causes for reversal under section 136 of our Criminal Procedure Act (2 Comp. St. 1910, p. 1863).
At the trial, the evidence tended to show, among others, the following matters of fact:
In the fall of the year 1924, the defendant conceived a design to rob the pay roll man of the Bound Brook Crushed Stone Company. He spent several days investigating the habits and route of the pay roll man. He undertook to carry out that design on December 18, 1924, the day of the tragedy, which was the company's pay day. In the early morning of that day, accompanied by his companion, Anderson, he left Jersey City in his red Buick touring car. At Plainfield he exchanged that ear for a blue one, which he had left there, and proceeded to the public road leading from Bound Brook to Chimney Rock, where he remained from 9:30 a. m. to 3:30 p. m., at times secreting himself and his car in a lane, at other times patrolling the road on foot. At 3:30 p. m. the superintendent of the company, riding this public road alone in the paymaster's car, was forced to stop by the defendant and Anderson, who were disguised as officers, and was required to disclose the contents of his car. They failed to find the money, because the superintendent did not have it, and the car was allowed to go. The defendant then drove his blue car to Plainfield, changed to his red car, and returned to the scene of the tragedy. Meanwhile, this attempted robbery being reported, and the otherwise suspicious conduct of the defendant having been seen, the pay roll money was sent by another route in the state police car, escorted by State Troopers Gregovesir and Coyle (the decedent) who had been sent for.
Upon his return to the scene of the attempted robbery, the defendant began again to patrol the road, armed with a revolver (filled partly with blank and partly with loaded cartridges), leaving his car secreted back in a lane with Anderson at the wheel.
Meanwhile Troopers Gregovesir and Coyle had observed the suspicious conduct of the defendant and his car, and had been informed of the attempted robbery. About 5 p. m. they drove in their car down the road, and overtook the defendant watching by the roadside, and placed him under arrest; but in searching him they failed to find his revolver which he had secreted under his clothing. They put him on the rear seat of their five-passenger soft top Buick touring car with their police dog, and started the car, Gregovesir driving in the left-hand front seat, and Coyle sitting beside him. As the car started, the defendant drew his revolver and cried, "Stick 'em up," whereupon Coyle drew his revolver and turned, and both men fired simultaneously. The defendant's revolver appears to have been set upon a blank cartridge, but the explosion near Coyle's face blinded and burned him, and Coyle dropped his own revolver.
Thus far there is no substantial dispute in the testimony. The state maintained, and the evidence tended to show, that, upon the defendant's saying, "Stick 'em up," Gregovesir drew his revolver, turned and tried to fire, but his revolver was grasped by the defendant and wrested from his hand; that, using that revolver, the defendant immediately shot Coyle twice and killed him, both bullets entering the rear part of the left armpit and passing through the heart; that Gregovesir, being disarmed, jumped out of the left side of the car, by way of the front door, into a ditch, and ran for help; that thereafter defendant got out of the car by the rear left-hand door; that when Gregovesir returned shortly thereafter he found Coyle dead on the front seat and the defendant gone. The defendant testified that he got out of the car by the right-hand rear door as Gregovesir jumped out on the left; that Gregovesir then opened the rear door on the left and fired two shots at the defendant as the latter was "ducking down behind the driver"; that then Gregovesir ran away, and defendant dropped his own gun and picked up both guns belonging to the troopers and made off in his automobile to Jersey City, carrying the troopers' revolvers with him, and so disposed of them that they could not be produced at the trial.
The defendant contended at the trial, and now contends, that he did not fire the shots that killed Coyle, but that they were fired by Trooper Gregovesir. That question the trial judge submitted to the jury, and was found against the defendant and we think rightly. The defendant now argues in this connection that the verdict is against the weight of the evidence. We think it was not. On the contrary, the evidence referred to, when considered in connection with the other evidence, notably that of a passerby, whose testimony supported the state's contention as to the conduct of the men as they left the automobile, satisfies us that the state's contention was true, and the verdict right. We shall notice the remaining points made by defendant in the order in which they have been argued.
It is first argued that the trial judge erred in overruling objections made by the defendant to the examination of the brother-in-law of the defendant, a witness called by the state.
The prosecutor of the pleas stated that the testimony of the witness at the trial was a surprise to him, and he wished to call his attention to the contradictory statements made by him in an affidavit before the trial. To this counsel for the defendant said:
"We object to the prosecutor's attempting to cross-examine his own witness."
Now whether or not the prosecutor of the pleas should be permitted to cross-examine the brother-in-law of the defendant, a witness called by the state, was a question resting within the sound discretion of the judge, and we think there was no error in overruling the objection "to the prosecutor's attempting to cross-examine his own witness" when, as here, his testimony was asserted to be, and was regarded by the trial judge, as a surprise to the prosecutor.
Then this further objection as made:
"We object to the reading of anything from this affidavit unless we are granted the privilege of examining the witness as to the circumstances surrounding the obtaining of this affidavit, whether it was a voluntary statement."
We have not stopped to examine the merit of this objection, and for this reason: The action of the judge in overruling the objection, if erroneous, cannot lead to a reversal, because it was not prejudicial to the defendant, since it appears that later, during the same examination of the witness, the defendant was permitted to examine him as to the circumstances surrounding the making of the statement, and he said in effect that it was voluntarily made.
The next point is that the admission of the confession signed by Genese (the defendant) upon his arrest was illegal.
Of course, before a confession made (as here) by a prisoner charged with crime, to an officer in whose custody he is upon that charge, can be received in evidence, it must be shown that the confession was voluntary. A voluntary confession is one not extorted by any sort of threats or violence or obtained by any direct or indirect promise. Roesel v. State, 62 N. J. Law, 216, 41 A. 408; State v. Murphy, 87 N. J. Law, 515, 94 A. 640. This preliminary examination is for the trial court and comprises a mixed question of law and fact. Roesel v. State, 62 N. J. Law, 216, 41 A. 408; State v. Hernia, 68 N. J. Law, 299, 53 A. 85; State v. Monich, 74 N. J. Law, 522, 64 A. 1016. This examination the court conducted, and at its conclusion admitted the confession in evidence.
The admission in evidence of a confession as voluntary is not reviewable on an ordinary writ of error, resting alone upon a...
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