State v. Juliano

• Citation: 138 A. 575
• Decision Date: 15 September 1927
• Docket Number: Nos. 87, 117.,s. 87, 117.
• Parties: STATE v. JULIANO et al. (two cases.)
• Court: United States State Supreme Court (New Jersey)

138 A. 575

STATE

v. JULIANO et al. (two cases.)

Nos. 87, 117.

Court of Errors and Appeals of New Jersey.

Sept. 15, 1927.

[Copyrighted material omitted.]

Error to Court of Oyer and Terminer, Essex County.

Joseph Juliano, alias "Big Joe," Christopher Barrone, Louis Capozzi, alias "Kid Roff," and Nick Joseph Juliano, alias "Little Joe," were convicted of murder in the first degree, and they bring error. Affirmed.

John W. McGeehan, Jr., of Newark, for plaintiffs in error Joseph Juliano, Christopher Barrone, and Louis Capozzi.

William A. Kavanagh, of Hoboken, for plaintiff in error Nick Joseph Juliano.

Joseph L. Smith, Prosecutor of the Pleas, of Newark (John O. Bigelow, of Newark, of counsel), for the State.

LLOYD, J. The writ of error in the above-entitled cases bring before this court the conviction of the appellants of the crime of murder in the first degree without recommendation to life imprisonment, and the consequent sentence of death. Both appeals are here on bills of exceptions and on specifications of causes for reversal under the 136th section of the Criminal Procedure Act of 1898 (2 Comp. St. 1910, p. 1863). Briefs have been filed by counsel in the respective cases, but with few exceptions to be hereinafter noted, both rely upon substantially the same grounds for reversal.

The history of the crime itself, as developed by the testimony, was that George Condit was employed by the Reid Ice Cream Corporation. That corporation had a plant and office on the east side of Mt. Pleasant avenue north of Clay street in the city of Newark, and among the duties of Condit was the depositing in bank of moneys received in the office. On the morning of July 19, 1926, a large deposit of cash and checks totaling more than $14,000 was prepared and placed in two bags. About 10 o'clock on this morning Condit, accompanied by another employee named Duff, received the bags from the cashier of the corporation. Each carrying a bag they proceeded to the street intending to enter a Chevrolet automobile used for transporting the money to the bank. Duff got in on the left side of the car, which was facing the wrong way on the street, and Condit passed around the rear of the car to the right side. As the latter reached the right side a large green Pierce Arrow automobile drove up, and while Condit was in the act of handing his bag to Duff there was a command from the large car to 'stick em up." A shot followed, and at the same moment a man came in between the cars, grabbed one bag; there was another shot, and then both bags were thrown into the large car and it sped away. Condit and Duff were both wounded and hurried to a hospital; Condit, however, dying on the way.

On the 14th of October following a man named Robert W. Boudreau was arrested, and from him information was elicited which led to the arrest of the four appellants. All were indicted for the murder of Condit, but Boudreau became a witness for the state and was not tried. The trial of the appellants began on November 15, 1926, and ended on December 2 following.

The defense interposed a complete denial by each and all of the defendants of the participation in the crime, and supplemental to such denial proof of an alibi was introduced on behalf of each. In the case of Joseph Juliano (called in the trial "Big Joe"), Barrone and Capozzi, 81 assignments of error and 82 specifications of causes for reversal are filed in this court, and in that of Nicholas Joseph Juliano (called in the trial "Little Joe") 95 assignments of error and 103 specifications of causes for reversal are filed. The specifications of causes for reversal are in general duplications of the assignments of error in the respective cases.

In the briefs filed in both cases the grounds upon which a reversal is asked are grouped, and for sake of comprehensive review they will be in like manner considered in this opinion, and will be taken up in the order in which the matters to which they refer arose in the proceedings below.

Preceding the trial itself a motion was made on behalf of Nicholas Joseph Juliano to quash the indictment, and a motion was made on behalf of all the defendants for a continuance of the cause. Both motions were denied by the trial court and are assigned as causes for reversal here.

Supporting the first motion it was and is contended that the indictment was faulty in that it did not apprise the defendants "whether they were charged as principals or as accessories, and in that it did not set forth the robbery as part of the crime." These motions preceded the trial itself and rested in the sound discretion of the court. They are therefore not reviewable in this court either on bill of exceptions or upon a "certificate of the entire record of the proceedings had upon the trial." State v. Harris, 100 N. J. Law, 184, 124 A. 602. If, however, we examine the questions sought to be presented as was done in the case of State v. Lynch (N. J. Err. & App.) 134 A. 760, we find these grounds without merit. As to the indictment, it set forth the crime of murder in the language of the statute and charged all of the defendants as principals. As actual participants in a robbery they were all principals and as such were tried, convicted, and sentenced. Nor was it necessary to incorporate in the indictment the fact of robbery as part of the crime charged. In the case of Titus v. State, 49 N. J. Law, 36, 7 A. 621, it was held by the Supreme Court, citing Graves v. State, 45 N. J. Law, 347, 46 Am. Rep. 778, in this court, that an indictment in statutory form sufficiently charges the crime of a murder in which rape forms an essential element. In the views expressed and the conclusion therein reached we concur. The case is therefore controlling where robbery is involved.

The motion for a continuance was predicated on the statement of counsel that an additional week or two was necessary to enable the defendants to prepare their case. The crime was committed July 19th; the defendants were arrested October 15th and indicted October 19th. To the indictment they entered pleas of not guilty on October 25th and the case proceeded to trial on November 15th, just one month after arrest, 27 days after indictment, and 21 days after their arraignment in the absence of persuasive proof that the time thus afforded was insufficient for the preparation of a proper defense, we think the time was ample, and denial of the motion, unsupported as it was by such proof, affords no ground of complaint.

The next step in the cause was an application by Joseph Juliano, Barrone, and Capozzi for a severance in their trial from Nick Joseph Juliano, which motion was overruled. This ruling presents the next point raised on the appeal. The application was rested on section 64 of the Criminal Procedure Act of 1898 (2 Comp. St. 1910, p. 1841), which reads:

"When two or more persons are or shall be jointly indicted for the same offense, except for conspiracy, and such indictment, before the trial thereof, hath been or shall be removed into the Supreme Court of this state, by certiorari or otherwise, any one of the said persons, on application to said Supreme Court, upon affidavit that some one or more of said persons so jointly indicted with him, whom he shall name, is or are, as he is advised by his counsel, whom he shall also name, and verily believes, a material witness or witnesses for him on the trial of said indictment, and without whose testimony he cannot safely proceed to trial, shall, by order of said Supreme Court, be allowed a trial separate from the person or persons whom he shall so name as such material witness or witnesses."

By the plain terms of this section of the act, to obtain the privilege accorded the indictment must of necessity be removed into the Supreme Court, and the application must be addressed to that tribunal. So long as the indictment remained in the Oyer, section 64 had no application or binding force; the rights of the defendants were governed by the common law. The application preceded the trial itself, was addressed to the discretion of the court (State v. Nixon, 86 N. J. Law, 371, 90 A. 1102; State v. Bossone, 89 N. J. Law, 724, 99 A. 310), and could not be made the subject of review in this court (State v. Harris, supra). But here again, if we consider the meritorious question, the appellants are without ground of complaint. The application was predicated on an affidavit by the appellants that Nick Joseph Juliano was a material witness for them and each of them, and that they might be deprived of his testimony. The obvious answer is that all of the defendants were competent witnesses; all of them could refuse to testify to matters which might incriminate them. These propositions were true whether the trial were joint or several, and it is not conceivable that the rights of any were jeopardized by the ruling of the court, and especially in view of the fact that Nick Joseph Juliano was actually called as a witness in his own behalf and in behalf of his codefendants.

The next contention is that the court erroneously refused to sustain the defendants' challenge to the array of jurors. Section 82 of the Criminal Procedure Act (2 Comp. Stat. 1910, p. 1847) provides that the list of 48 names shall be drawn "from the general panel of jurors that may have been drawn and summoned to attend as jurors at the term at which such defendant is to be tried." It was contended in the trial court and is contended here that the statute was not complied with in that the trial panel was drawn from a part of and not from the entire general panel.

In 1913 the act known as the Chancellor Jury Commissioners' Act was passed. Supp. 1911-1915, Comp. Stat. p. 836. That act provides (section 5) that the commissioners appointed thereunder shall make two lists of persons liable to jury duty containing not less than 500 names, one copy of which shall be delivered to the Justice of the Supreme Court assigned to hold the...