State v. Palmieri

• Decision Date: 20 June 1919
• Docket Number: No. 16.,16.
• Citation: 107 A. 407
• Parties: STATE v. PALMIERI.
• Court: New Jersey Supreme Court

107 A. 407

STATE

v. PALMIERI.

No. 16.

Court of Errors and Appeals of New Jersey.

June 20, 1919.

Syllabus by the Court.

Error to Court of Oyer & Terminer, Middlesex County.

Gennaro (or Genari) Palmieri, alias Napolitano, was convicted of murder in the first degree, and he brings error. Affirmed.

Theodore Strong, of New Brunswick, for plaintiff in error.

Joseph E. Strieker, Prosecutor of the Pleas, of Perth Amboy, for the State.

PARKER, J. The plaintiff in error, defendant below, was convicted of murder in the first degree, without any recommendation of life imprisonment, as permitted by P. L. 1916, p. 576. We are asked to reverse that conviction on several grounds.

The principal circumstances of the crime, as brought out at the trial, are that defendant and several others conspired in New York City to go the farm of one Roman Smith, in the county of Middlesex, and rob him of his money. One of the conspirators named De Palma had lived on the farm and reported that Smith had $10,000, or some such sum. They went down to the farm prepared to perpetrate the robbery, but the presence of men and barking dogs seems to have deterred them and they returned. In a day or so several of them again visited the farm and bought some milk, and, probably rinding the coast clear, came back the next day, all armed, went to the house, where they found Smith's wife, he being in the field, handed her a dollar bill in payment for some more milk, and as she was making change attacked and bound her and beat her, and as deceased was coming from the field to his wife's aid he was attacked, and shot by De Palma and then by defendant while he was on the ground. The criminals secured about $80 in money and left. These facts substantially appear by the testimony of the wife as to the attack on her, the confession of defendant, and his own testimony at the trial. Mrs. Smith was 60 years of age; her husband 70. All of the party were indicted, but there was a severance, and plaintiff in error was tried alone.

The case is before us under section 130 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), and the first cause of reversal pressed is the third assigned:

"Because the court charged the jury: Under the facts in this case your verdict will have to be, if you find that condition—I am not finding the facts—but if you find that condition I have stated, then your verdict can be nothing but either murder in the first degree, under the statute, or the defendant is entitled to an acquittal; and you are not responsible for the law."

This is the language brought up by the third cause for reversal; counsel in his brief adds other language of the charge not so assigned, and which he is not entitled to have reviewed, but it is merely explanatory of that quoted, and is to the effect that if the four persons were aiding each other in the robbery, and to prevent detection or interference defendant or others killed Smith, they were all guilty of murder in the first degree.

The objection of counsel in his brief to these instructions (there was no oral argument) is somewhat obscure. If it is intended to challenge the instruction as to the character and degree of crime committed, it was manifestly correct. Roesel v. State, 62 N. J. Law, 216, 223, 41 Atl. 408; State v. Young, 67 N. J. Law, 223, 233, 51 Atl. 939; State v. Zeller, 77 N. J. Law, 619, 73 Atl. 498. In cases where manslaughter is a tenable theory on the evidence, the charge should so declare (State v. Herrmann, 77 N. J. Law, 534, 76 Atl. 1086); but if there be no evidence to support such theory the rule is otherwise (State v. Hernia, 68 N. J. Law, 299, 53 Atl. 85; State v. Pulley, 82 N. J. Law, 579, 82 Atl. 857).

Under point II, however, and perhaps under point I, the charge is challenged as failing to include an instruction that with a verdict of first degree the jury could couple a recommendation of imprisonment at hard labor for life. This seems to be argued in two ways: First, that the language brought up under cause 3 and quoted above contained no allusion to the statute of 1916. The answer is that the provisions of that statute were explained to the jury in another part of the charge, and in such a way that the charge as a whole is in no way obnoxious to the objection of inconsistent or contradictory instructions. Secondly, that the language explanatory of the statute did not develop its full import, because the trial judge told the jury they could "recommend that the punishment be imprisonment for life" instead of saying in the words of the act "imprisonment at hard labor for life;" for, peradventure (it is argued), the jury might spare life by recommending imprisonment at hard labor when they would be unwilling to accept the alternative of imprisonment without hard labor. We are unable to perceive that any jury of presumably sensible men would be influenced by any such fanciful distinction. That imprisonment for life is imprisonment in the state prison, where hard labor is of course, is settled. Gibbs v. State, 45 N. J. Law, 379, 388, 46 Am. Rep. 782; State v. Ford, 86 N. J. Law, 73, 90 Atl. 1025. Counsel themselves made no distinction at the trial, but requested at one point a charge "that the jury could incorporate with their verdict of first degree a recommendation of imprisonment for life," and at another asked an instruction containing the same language, adding the words "at hard labor." If there was no distinction in the minds of counsel, it is safe to say there was none in those of the jury. We think there was no substantial distinction, and that the requests on this phase, in whatever form submitted, were substantially charged.

The next point relates to the instruction of the court respecting a recommendation of mercy by the jury. After being...