State v. Lennon

• Decision Date: 19 May 1930
• Docket Number: No. 61.,61.
• Citation: 150 A. 361
• Parties: STATE v. LENNON.
• Court: New Jersey Supreme Court

150 A. 361

STATE

v. LENNON.

No. 61.

Court of Errors and Appeals of New Jersey.

May 19, 1930.

Syllabus by the Court.

The plaintiff in error was convicted of murder in the second degree. The testimony examined, and held, that it was not error for the trial court to refuse to direct a verdict of acquittal; held further, the verdict is not against the weight of the evidence.

Syllabus by the Court.

It was not error for the trial court to charge the jury as follows: "The defendants make no effort to take the stand to testify, each for himself in his own behalf. In that connection, I want to say to you that if facts are testified to which concern the acts of the defendant, which he could by his oath deny, his failure to testify in his own behalf, raises a strong presumption, that he cannot truthfully deny them."

Error to Court of Oyer and Terminer, Essex County.

Joseph Lennon and others were convicted of murder in the second degree, and named defendant brings error.

Affirmed.

John W. McGeehan, Jr., of Newark, for plaintiff in error.

Simon L. Fisch and Joseph L. Smith, Prosecutors of the Pleas, both of Newark, for the State.

BLACK, J.

The plaintiff in error, Joseph Lennon, with two other defendants, was convicted of murder in the second degree for killing Edward Turella. A writ of error was issued out of this court to review the legality of the conviction of the defendant Joseph Lennon. The plaintiff in error filed seven assignments of error and seven specifications of causes for reversal covering the same points.

The first and second assignments of errors, errors by the trial court in refusing to grant a motion for the direction of a verdict of acquittal. Third, fourth, fifth, and sixth, errors in the charge of the trial court. Seventh, the verdict was against the weight of the evidence, under P. L. 1921, p. 951.

The fifth and sixth assignments of error are not argued. They are withdrawn in the brief of the plaintiff in error.

A short summary of the testimony sent up with the writ of error will make clear the assignments of error relied upon for a reversal, other than those relating to the charge of the trial court.

The theory of the state, as expressed in the brief, is the killing of Edward Turella grew out of an attempted perpetration of a robbery by the defendants, first, of a diamond pin worn by a companion of Turella's, and, second, of $5,000 which the defendants thought was in the possession of Turella and his companion Carrione, who was also shot and killed on the same occasion.

Elsie Naugle, the first eyewitness, testifying on behalf of the state, testified as follows: Early in the morning of September 30, 1926, she, accompanied by Edward Turella and Carrione, went to a saloon at 381 Washington street in an automobile. That, while she was outside of the premises, Turella and Carrione went inside, and, during the few minutes she remained outside, another automobile drove up with five men in it, who parked their car behind that in which she was. She heard them speaking about dividing some money. Shortly thereafter the five men went into the premises while she was still outside. About twenty minutes later she too went in, being invited by Turella to come in and have a drink. No. 381 Washington street was a saloon with a large barroom in the front and a room in the rear, marked on the map, Exhibit S-1, "Room B." Room B was separated from the barroom by an old-fashioned swinging door. She (Miss Naugle) with Turella went into Room B, where they were seated at a table with Carrione and a girl by the name of Mae Martin. In the same room, at a table next to theirs, were seated the defendants Nolan, Cane, and Lennon. All three of them were identified by the witness. After a while, there was dancing to the music of a player piano, and the witness started to dance with Turella, while Mae Martin was dancing with the defendant Lennon. While Lennon was dancing with Mae Martin, the witness saw Lennon reach over and strike Carrione (who was still seated at the table) on the chin. Carrione, at the time, was wearing a diamond stick pin. At this instant, Turella ran over to help Carrione. Then John Blaszak, alias Scoop, one of Lennon's companions, started fist fighting with Turella, and then pulled out a gun and fired a shot at...