State v. Nardella, 137.

• Decision Date: 18 May 1931
• Docket Number: No. 137.,137.
• Citation: 154 A. 834
• Parties: STATE v. NARDELLA.
• Court: New Jersey Supreme Court

154 A. 834

STATE

v. NARDELLA.

No. 137.

Court of Errors and Appeals of New Jersey.

May 18, 1931.

Syllabus by the Court.

The trial court instructed an interpreter not to repeat any answers of defendant which included hearsay' statements; held that, in view of the fact, as appears by the record, that the admissibility of all proffered testimony was passed upon by the court, there was no error prejudicial to defendant.

Syllabus by the Court.

Where every essential in a request to charge is covered elsewhere in the charge, it is not error to decline to charge in the exact language of the request.

Syllabus by the Court.

It is not error for the trial court, in a capital case, to re-read to the jury a portion of the testimony and of the charge in the temporary absence of the defendant but in the presence of defendant's counsel, at the request of the jury; no step original in its character being taken.

Syllabus by the Court.

Held, that the verdict of the jury was rendered in legal form.

Syllabus by the Court.

Record examined, and held that defendant was given a fair trial, and was given the benefit of every safeguard guaranteed an accused by the law.

Error to Court of Oyer and Terminer, Passaic County.

Bonaventura Nardella was convicted of murder in the first degree, and he brings error.

Affirmed.

John C. Barbour, of Clifton, and E. Robert Coven, of Paterson, for plaintiff in error.

J. Vincent Barnitt, of Paterson, for the State.

DONGES, J.

The plaintiff in error (hereinafter referred to as the defendant) was convicted of murder in the first degree for the killing of his wife, Lucia Nardella.

The defendant came to this country from Italy in 1910. He returned to that country in 1914, and in 1915 he married the decedent, by whom he had two children before returning to this country in 1920. In 1922 his wife and two children came to this country and lived with defendant, first at Manlius, N. Y., and then in Paterson, in this state. Two daughters were born after the wife came to this country. The defendant, with his wife and children, continued to live in Paterson until her death.

From defendant's statements to the authorities, it appears that he became suspicious of his wife and frequently accused her of infidelity. He quarreled with her, and, on one occasion, the quarrel was so violent as to require calling in a justice of the peace to protect the wife and to quiet the defendant. He admitted that for some time, prior to the killing he had determined to kill his wife because he believed her unfaithful to him, although he bad no evidence of her infidelity and she vigorously denied his accusations. However, he concluded that the only solution of the situation was to kill her.

The admissions were made to the district attorney of Onondago county, N. Y. (whence he fled after the murder), and to the prosecutor of Passaic county, after he was brought back to this state.

On the day of the murder his wife was trying to persuade him to accompany her to a doctor to have his injured finger treated. His wife was dressing to go with him, and as she leaned over to adjust her stocking or shoe, he struck her in the back of the head with a baseball bat. In his statement, defendant said: "No, I didn't want to go. I said, I didn't feel very well. I felt sleepy. 'We will go Monday night' My wife said, 'No, we will have to go right now.' I said I didn't feel well, once, two, or three time. I said, 'I don't feel well.' She caused me to get mad. She got me mad and having the opinion that she was a bad woman, I picked up a baseball bat and hit her on the head." He further said that he intended to kill her. After striking his wife with the bat, he dragged her by the feet down the cellar stairs to the coal bin, where, observing that she was alive, he struck her several times with a coal shovel, which he bent. Then, his wife still breathing, or, as he said, "I wasn't sure that she was dead," he secured an axe and struck her with the edge several times, and made sure that she was dead. He then threw coal on her face and put boards over her body. He then went upstairs, washed blood stains from the floor, and endeavored to wash blood stains from his hands and clothing. He talked to his children, but said nothing of his attack upon his wife. He changed his clothing, locked the doors to the coal bin and cellar, and then fled to New York, where he was captured the next day.

He admitted the killing of his wife to the authorities in New York, and in Paterson, and, at the trial, admitted the killing. In his testimony at the trial, in response to the question, "Then what happened, Mr. Nardella, on August 2nd?" he replied:

"It happened that I killed her. I done the spoils, and give me my medicine and finish it all.

"Q. What does that mean? You are sorry? A. Sorry about the poor children in the street, and ruined the whole family, and the whole house, the entire family."

The defense was one of insanity.

The case is before us for review on bills of exception and on specifications of causes for reversal on the entire record of the proceedings at the trial, under section 136 of the Criminal Procedure Act (2 C. S. 1910, p. 1863). It is not urged that the verdict is against the weight of the evidence.

The first point urged is that the trial judge committed error in that he instructed an interpreter not to give any answers of defendant which included hearsay statements, and that such instructions delegated to the interpreter the judicial function of passing upon the admissibility of testimony.

Of course, the authority to pass upon the admissibility of evidence cannot be delegated by the trial judge to any person. While it is true that the judge did instruct the interpreter not to give any hearsay answers, he did not, in fact, attempt to delegate the duty of saying what answers were admissible. In each instance complained of, the interpreter translated enough of the answer to inform the court of its purport, and the court directed that the answer be not completed. In each instance, the answer was either completed or ruled upon by the court, and counsel for defendant did not take any exception to such rulings. The record fails to disclose that any testimony offered on behalf of defendant was excluded, but his case was fully and completely presented. If the direction of the judge to the interpreter not to translate hearsay statements was technically erroneous, no harm was done to the defendant, because it appears that the court and not the interpreter passed upon the admissibility of the answers. There is no merit in this point.

Point II alleges error in refusing to charge as requested as to the law permitting the jury to recommend life imprisonment.

The trial judge read the statute (P. L. 1919, p. 303 [Comp. St. Supp. § 52—108]) and then, at considerable length, explained the effect of the statute and the power of the jury to make such recommendation. Every essential in the request to charge was charged. When the substance of the request to charge is charged, as in this case, it is not error for the trial judge to refuse to charge the' language of the request. State v. Genese, 102 N. J. Law, 134, 130 A. 642.

Point III is that the trial judge erred in reading a part of his charge, theretofore delivered in identical language, to the jury in the absence of the defendant.

The record discloses that the jury had retired to consider the case and to reach a verdict. The jury came into the courtroom at 1:50 a. in., and the following colloquy occurred:

"Ladies and Gentlemen of the Jury, I sent for you at this hour of the morning to find out if it is possible for you to agree upon a verdict.

"Juror: We have not agreed.

"The Court: Is there anything in the law from which the Court can assist you?

"Juror: Yes, we did send out a note, but we got no reply.

"The Court: What is there you want to be refreshed on?

"Juror: On the cross-examination of Dr. King—the cross-examination, I think it was.

"The Court: I'll read the cross-examination to you."

Thereupon, the court read the entire cross-examination of Dr. King, an expert witness produced by the defendant on the question of his sanity.

The court then read a part of his original instruction to the jury on the question of insanity as a defense.

Exception was taken by defendant's counsel, who were present throughout the proceeding, to the repetition of so much of the charge as was restated, and also to the fact that such restatement was made in the absence of the defendant. No objection was offered in advance of the reading that the defendant was not present. Only the second ground is now urged as error.

The point made is that the presence of the accused is necessary during the whole of the trial; that his presence is not only an inalienable right, but is a jurisdictional requisite which cannot be waived.

The Constitution of New Jersey (article 1, § 8) provides: "In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defense." This clause is identical with the one contained in...