State v. Merra

• Decision Date: 16 May 1927
• Citation: 137 A. 575
• Parties: STATE v. MERRA et al.
• Court: New Jersey Supreme Court

137 A. 575

STATE

v. MERRA et al.

Court of Errors and Appeals of New Jersey.

May 16, 1927.

Error to Court of Oyer and Terminer, Essex County.

Salvatore Merra and another were convicted of murder, and they bring error. Affirmed.

See, also, 134 A. 558; 135 A. 546.

Felix Forlenza, of Newark, and Alexander Simpson, of Jersey City, for plaintiffs in error.

John O. Bigelow, of Newark, Prosecutor of the Pleas, for the State.

GUMMERE, C. J. The plaintiffs in error were convicted upon an indictment charging them with the felonious killing of one Theodore Conway, who was an assistant paymaster in the employ of the Public Service Corporation. His murder occurred on the 4th of June, 1926; and, as the state charged, in an attempt by the plaintiffs in error and others to rob a pay car of the corporation, of which he was in charge, while it was standing at the corporation's car barn, at the corner of Central avenue and Fourteenth street, in the city of Newark. The fact that Conway was killed in an attempt to rob the car is not in dispute. At the close of the trial the jury returned the following verdict, as certified to us by the presiding judge of the Essex oyer and terminer:

"We find Salvatore Merra guilty of murder in the first degree. We find Salvatore Rannelli guilty of murder in the first degree and recommend life imprisonment."

This certification was made to us in compliance with our mandate directed to the Essex oyer and terminer. Our action in this regard was the result of an application of the prosecutor of the pleas based on the statement that the transcription of the verdict, as contained in the record sent up to us in obedience to the command of our writ, was erroneous, and was taken after a hearing upon the application was afforded both counsel for the state and counsel for the plaintiffs in error. Upon the rendition of the jury's verdict, as so certified, the trial court imposed sentence of death upon Merra and of life imprisonment upon Rannelli.

The first ground upon which we are asked to reverse the conviction before us deals with the legality of the death penalty imposed upon Merra. The claim is that it was in disregard of the declaration of the jury, in that by its verdict it recommended him, as well as Rannelli, to life imprisonment. We consider this contention to be without merit; in other words, that the verdict contained no such recommendation. As rendered, it is divided into two separate sentences by the period which follows the finding as to Merra's guilt. The first of these sentences deals exclusively with that finding. Having declared its conclusion with relation to the charge laid in the indictment against Merra, the jury then proceeded, in a new sentence, to declare its finding with relation to the charge against Rannelli, and, having done so, proceeded in the same sentence to recommend life imprisonment. The period indicates that the jury had finished its pronouncement so far as its verdict related to Merra, and that it then declared its conclusion as to its finding upon the charge laid against Rannelli, and as to the punishment which should be inflicted upon him. And that this is not only the grammatical construction of the verdict, but that the verdict was clearly understood as expressing the purpose which that construction indicates is made manifest not only by the conduct of the trial court in pronouncing sentence of death upon Merra, but also by the conduct of the latter's counsel in sitting by and allowing such a sentence to be imposed without protest.

The next ground upon which a reversal is sought is based upon the contention that there was harmful error in the refusal of the trial court to sustain the challenge of defendants' counsel to the array of jurors. The challenge was made immediately upon the moving of the trial of the cause by the prosecutor of the pleas. It was based upon the ground that the latter, some days before, had made a speech to the State Bar Association in which he attacked the character of one of the defendants; that this speech was printed in the Newark Evening News; and that, as a result of the publication, the defendants could not have a fair trial, for the reason that the whole panel had been tainted after reading the article. We consider that the basis of the challenge was without legal merit; in other words, that the assertion of counsel that the whole panel had been tainted by reading the article was not supported by the fact, for there was nothing before the court at the time when the challenge was interposed which was even suggestive of the fact that a single member of the panel had read it. In the case of Baus v. Trenton & Mercer County Traction Corp. (N. J. Sup.) 131 A. 92, affirmed on opinion in (N. J. Err. & App.) 134 A. 915 (but not yet [officially] reported), counsel for the defendant having moved to withdraw a juror and direct a mistrial, just before the trial of the case was concluded, because of the fact that a newspaper article, the publication of which was said to have been instigated by plaintiff's counsel, had been printed a day or two before the trial began, and contained matter injurious to the defendant, the motion was denied. It was held on review that the mere publication of the article, standing alone, afforded no ground for granting the motion, the court declaring that:

"If it had been shown that the article had been read by the members of the jury, or some of them, the situation would have called for the exercise of judicial discretion by the trial court in dealing with the motion. There was, however, nothing before the court to indicate that such was the case, and the motion was properly denied."

The next ground for reversal relied upon by counsel for plaintiffs in error is that the trial court improperly permitted the state to ask one of its witnesses, on redirect examination, the following question: "Is this man Merra the man you saw up there on Fifteenth street?" The sole ground of objection to the question was that it was leading. This fact, however, did not require the exclusion of the question. It is entirely settied that it is within the discretion of the trial court to determine whether or not it will permit a leading question to be put to a witness. Moreover, in the present case, the witness to whom the question was addressed had already testified without qualification to the identity of Merra at the place referred to in the question and immediately after the murder had been committed. In this situation of the proofs, even if we should have considered the ruling erroneous, we should not have felt justified in reversing the conviction on that ground, for the admission of the question could not have prejudiced the plaintiffs in error in maintaining their defense upon the merits.

Next, it is argued that the court erroneously permitted the state to show on the cross-examination of Merra not only that he had been previously convicted of crime, but that he had been sentenced upon such conviction to five years' confinement in Sing Sing Prison. The argument is that the court ought not to have allowed the state to prove by the defendant's testimony the punishment inflicted upon him for the crime of which he had testified he had been convicted. The propriety of the court's ruling upon this point is not doubtful. In the case of State v. Silver (N. J. Err. & App.) 127 A. 545 (not yet [officially] reported), we held that the trial court might permit, on cross-examination of a witness as to his conviction of crime, such facts as would have been brought out if the conviction had been proved by the production of the record thereof, and pointed out that the record of the conviction would show not only the finding of guilt by the jury, but the sentence imposed upon that finding.

The next ground urged for reversal is that the trial court improperly allowed the prosecutor of the pleas to introduce in evidence certain articles found in the home of the plaintiffs in error. There was no suggestion made to the trial court that these articles were not evidential on the question of the truth of the charge made against them; the sole ground upon which their exclusion was asked being that they were taken possession of by the police without a search warrant, and, consequently, in violation of the constitutional right of the plaintiffs in error against unreasonable search and seizure. We consider the ground upon which the trial court was asked to exclude the admission of these articles in evidence was without merit; for it is entirely settled in this state that property procured by an unjustifiable search and seizure is admissible in evidence, if evidential per se. State v. Lyons, 99 N. J. Law, 301, 122 A. 758, and cases cited.

Next, we are asked to set aside these convictions on the ground that the verdict upon which they rest is contrary to the weight of the evidence. Our examination of the testimony satisfies us that this is not the fact. If the jury believed the testimony offered on the part of the state and disbelieved that submitted on the part of the defendants (and that they did this their verdict shows), they could not have reached any other conclusion than that the plaintiffs in error were guilty as charged.

The next ground upon which a reversal is asked is that the court refused to charge certain requests submitted by the defendants, and which, it is stated, contained nine principles of law which were material to the issue which was being tried. An examination of the record, however, discloses that there...