State v. O'Leary

• Decision Date: 14 October 1957
• Docket Number: No. A--4,A--4
• Citation: 25 N.J. 104,135 A.2d 321
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James O'LEARY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 104

25 N.J. 104

135 A.2d 321

STATE of New Jersey, Plaintiff-Respondent, v. James O'LEARY, Defendant-Appellant.

No. A--4.

Supreme Court of New Jersey.

Argued Sept. 4, 1957.

Decided Oct. 14, 1957.

Edward J. Madden, Jersey City, argued the cause for appellant (Cole, Madden & Weener, Jersey City, attorneys).

Archibald Kreiger, Deputy Atty. Gen., argued the cause for the State (Charles S. Joelson, Deputy Atty. Gen., Acting Passaic County Prosecutor, attorney; Julius A. Feinberg, Deputy Atty. Gen., on the brief).

The opinion of the court was delivered by

WACHENFELD, J.

The appellant was convicted of second-degree murder in the Law Division of the Superior Court, Passaic County, and appeals directly to this court by virtue of Art. VI, Sec. V, par. 1(c), of the Constitution of 1947 and of R.R. 1:2--1(c). He was sentenced to the New Jersey State Prison for 10 to 12 years.

On May 2, 1929 Alex Szabo was shot while in the commercial garage of Max Siegendorf in the City of Passaic. Siegendorf was working in his repair shop at about 5:00 P.M on the day in question when he heard the sound of a shot. He went outside, walked over to the store portion of his garage, entered the 'tire room,' and found Szabo slumped in a corner. Szabo had been an occasional visitor to the garage and was known by Siegendorf.

Siegendorf assisted the wounded man to his feet, and Szabo thereupon remarked that he was paralyzed. Siegendorf drove the victim to the office of a Dr. Simon, who recommended that he be taken to a hospital. Accordingly, Siegendorf took Szabo to Beth Israel Hospital which was near by.

There, at about 6:00 P.M., Dr. Edward Whelan, surgeon-in-chief, examined Szabo and determined from X-rays that a bullet had severed his spinal cord to the left of the third thoracic or dorsal vertebra. Dullness of the victim's lungs was noted, and it was ascertained that there was bleeding into the pleural cavity. Dr. Whelan's prognosis was highly unfavorable, and he informed Szabo that he would die in from three to six hours, suggesting a priest be summoned and also the police.

Thereafter, Detective Potosnak and Lieutenant Cunningham of the Passaic Police force were sent to the hospital. Around 10:00 P.M., Captain Monks arrived and with Detective Potosnak took a statement from Szabo. Szabo stated preliminarily that 'Cockeye' O'Leary had shot him and he knew he was going to die; he felt 'sure' of it. He was then questioned by Captain Monks while Detective Potosnak took down the questions and answers on a police department form. This written statement was subsequently marked by Szabo with an 'X' in two places, Monks guiding his hand for that purpose. At the trial, it was admitted into evidence as a dying declaration.

In this statement Szabo asserted he realized he was going to die and that he had been shot by four men, two of whom he knew, one 'Big Mike who worked for Johnny Jones * * * and a man by the name of O'Leary.' The other two assailants were unknown. Szabo related that o'Leary and Big Mike had shot him once while he was standing and once while he was on the ground. Both, he said, had carried guns in their hands and had stated, 'I told you I would get you.'

The victim also briefly outlined the source of his difficulty with O'Leary. He said O'Leary had been one of a number of bootleggers running a still in Ramsey and that he, Szabo, had stolen their 'ale burner' and then unwittingly sold it back to O'Leary, not realizing it had originally belonged to him.

Szabo went on to describe an accidental meeting with O'Leary, at a busy corner in Passaic on the Tuesday prior to the day of the shooting, where the latter had informed Szabo that he was 'out to get' him. Szabo's statement ended with an averment that the facts summarized were all he could tell the police about the shooting.

Early in the morning of the third of May, Detective McCann of the Passaic Police went to Szabo's room with a picture of O'Leary which had been procured from the Jersey City Bureau of Criminal Identification. Szabo identified O'Leary from the picture as one of the men who had shot him. The photograph was admitted into evidence.

Szabo died on May 4, 1929, and on the 24th day of the same month the Passaic County grand jury indicted O'Leary and five others for his murder. Daniel Collins and Herman Groth were arraigned on the same day the indictment was returned and pleaded not guilty, being admitted to bail in the amount of $25,000 each. According to the record before us, no other proceedings were ever taken against them. Three of the defendants, McDonald, Gatto and Pelicastro, were never apprehended.

O'Leary was arraigned on December 7, 1934. After a plea of not guilty, he was released in $10,000 bail and the case against him remained dormant until January of 1957, when Acting Prosecutor Joelson discovered the open indictment. On January 28, 1957 O'Leary was arrested. On February 7, 1957 he was admitted to bail on his own recognizance. The trial started on March 18, 1957.

Siegendorf, Dr. Whelan, Monks, Potosnak and McCann were the most important witnesses for the State. Szabo's statement was received and the photograph of O'Leary he had identified in the hospital was admitted into evidence. The defendant did not take the stand and offered no evidence save for his insistence that the indictment in question be marked as a defendant's exhibit.

The appellant's first contention is that the trial court committed reversible error in charging the jury concerning his failure to take the stand. If the charge were as represented in the appellant's brief, there might be substantial grounds for complaint. The record reveals without dispute, however, that the appellant has misquoted the remarks of the trial judge relating to this aspect of the case. The court charged as follows:

'However, where there is direct evidence of facts within the personal knowledge of the defendant tending to implicate him circumstantially with the offense charged, failure to testify with relation to those facts raises a strong presumption that he could not truthfully deny those facts.'

This is identical with the trial court's charge in State v. Rogers, approved by us in 19 N.J. 218, 116 A.2d 37 (1955). The appellant maintains it was erroneous because there was no incriminatory evidence linking him to the crime and therefore nothing to deny. There being no direct evidence of any inculpatory act, the appellant says, there is no premise for an unfavorable inference to be drawn from his failure to testify.

He ignores the fact, however, that Szabo's dying declarations were admitted and were evidence of the appellant's guilt to be considered by the jury. True, they were admissible under an exception to the hearsay rule, but they were nevertheless constituted legal evidence, identifying the perpetrator of the crime in question, upon which the jury had a right to act. In the Rogers case the evidence was wholly circumstantial in character, while here there was a statement by way of a dying declaration from an eyewitness accusing and identifying O'Leary as the perpetrator of the murder.

Ever since Parker v. State, 61 N.J.L. 308, 39 A. 651 (Sup.Ct.1898), affirmed 62 N.J.L. 801, 45 A. 1092 (E. & A.1899), our practice has permitted comment by the prosecutor and the court upon the silence of the accused where, as said in State v. Costa, 11 N.J. 239, 255, 94 A.2d 303, 311 (1953), '* * * there are facts in evidence concerning the acts or conduct of the defendant within his personal knowledge which are inculpative or imputative in some degree of guilt, which facts he by his oath can deny.'

Charges to the jury embodying this principle have been a fixture of our criminal law, and we can find no error in the present deliverance.

These proceedings present a remarkable chronology which we hope will never be duplicated in the annals of New Jersey criminal jurisprudence. No explanation was given, but, in lieu thereof, an apology is submitted for the unprecedented delay of nearly a quarter of a century between arraignment and prosecution. This dismaying procrastination stands as an inerasable blot on our record of the expeditious administration of criminal justice as we proudly thought it had existed.

Judicial admonitions against delay in the prosecution of criminal cases are abundant and pointed. State v. Dandridge, 37 N.J.Super. 144, 149, 117 A.2d 153 (App.Div.1955); State v. Appice, 23 N.J.Super. 522, 530, 93 A.2d 200 (App.Div.1952), affirmed 13 N.J. 286, 99 A.2d 453 (1953), certiorari denied 346 U.S. 939, 74 S.Ct. 380, 98 L.Ed. 427 (1954).

Our law is settled by State v. Smith, 10 N.J. 84, 89 A.2d 404 (1952), where the majority of this court held:

'Defendants never had under the constitutional guaranty of a speedy trial the right to have an indictment dismissed; they merely could apply to the court to fix a day certain and on the failure of the State to proceed they could be discharged on their own recognizance or a judgment of acquittal entered.' (10 N.J. at page 93, 89 A.2d at page 408.)

O'Leary made no application to have a date fixed for trial nor did he ever make a single move to have his case disposed of. Thus, the facts Sub judice are entirely different, and less favorable to appellant, from those in the Smith case, where the dissent points out that Smith had made demands for a speedy trial which were ignored. Nevertheless, under the highly unusual circumstances present here, the slightest proof of embarassment occasioned by the delinquency of the prosecution might well, I am sure, have tilted our decision in O'Leary's favor.

But, although appellant's brief mentioned the fact that a 'motion was made for his release' and the record shows that before trial notice of motion was given to dismiss the indictment upon the ground that it was 27 years old and the unusual delay had 'harassed and prejudiced the defendant,' the denial of that motion is not appealed.

On oral argument the...