State v. Petrolia

• Decision Date: 03 June 1957
• Docket Number: No. A--189,A--189
• Citation: 45 N.J.Super. 230,132 A.2d 311
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Benjamin PETROLIA, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 230

45 N.J.Super. 230

132 A.2d 311

The STATE of New Jersey, Plaintiff-Respondent, v. Benjamin PETROLIA, Defendant-Appellant.

No. A--189.

Superior Court of New Jersey.

Appellate Division.

Argued May 15, 1957.

Decided June 3, 1957.

Archibald Kreiger, Deputy Atty. Gen., argued the cause for plaintiff- respondent (Charles S. Joelson, Deputy Atty. Gen., Acting Passaic County Prosecutor, attorney).

Ervan F. Kushner, Paterson, argued the cause for defendant-appellant (Isadore Waks, Paterson, attorney; Robert Kleiner, Paterson, on the brief).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Appellant was convicted of armed robbery. His previous conviction of the same offense was reversed for error in admitting a purported confession. State v. Petrolia, 21 N.J. 453, 122 A.2d 639 (1956). The present appeal is predicated upon an alleged error in the charge of the trial court on the subject of flight by an accused, and on asserted improper limitation in the cross-examination of a self-confessed accomplice.

The record discloses that Petrolia was arrested and charged with the crime on August 7, 1950. He was released in substantial bail and shortly thereafter disappeared. Four years later he was located in Chicago where he was living and working under an assumed name. Extradition was waived and he was returned for trial. The explanation given at the trial for his departure was not persuasive.

In charging the jury on the subject the court said:

'There has also been brought out in the testimony the fact that the defendant, Benjamin Petrolia, left the jurisdiction of the State of New Jersey and went to Chicago, Illinois, and there changed his name, while he was under bail, and that he was picked up there about four years later on a fugitive warrant. In the law that is what is known as flight. The courts have held that flight does not carry with it a rebuttable presumption of guilt, because there can be no presumption of guilt in a criminal matter, and is merely a circumstance which may tend to show consciousness of guilt, which should be weighed by the jury with all other facts and circumstances. Unexplained flight by a person charged with crime is sufficient to raise an inference of guilt.'

The asserted objection thereto was as follows:

'The next point, your Honor, is number 9. Your Honor has correctly charged the law of flight as far as your Honor went, but your Honor did not say as requested, and as is proper to charge, that he gave an explanation for the flight, namely, fear of a repetition of the police brutality.'

Obviously, the criticism has to do with the failure to discuss the factual explanation given by the defendant for leaving the State and the failure to charge request number 9 in that connection as presented by the defense. The text of the request makes plain this conclusion. It is:

'9. Flight by a person accused of crime, when unexplained, raises an inference or presumption of guilt. Such inference or presumption is rebutted by the defendant's testimony that he left the State of New Jersey because he feared a repetition of the specific brutality inflicted upon him by the Paterson Police, as put in evidence by the defendant and his witnesses.'

Manifestly it would not have been proper to instruct the jury as a matter of law that the defendant's explanation of his flight 'rebutted' the 'inference or presumption of guilt' which, according to his own request to charge, arose from his departure from the State. The probative force of the defendant's explanation, of course, was a matter for jury determination. And it is significant to note that refusal to charge this request is not made a ground of appeal.

When the objection was made and request to charge number 9 was referred to, the court said:

'Well, I did not need to charge that. I left it up to the jury to decide whether there was an explanation or not.

'Mr. Bozza: Otherwise, it is a most commendable charge.'

Now defendant argues that prejudicial error was committed when the jury was told that unexplained flight is sufficient to raise an 'inference' of guilt. Patently no objection of that nature was interposed. In fact, defendant asked the court to charge that such flight raises 'an inference or presumption of guilt.' The word 'presumption' has a more unfavorable impact than the words actually used. See State v. D'Amato, 26 N.J.Super. 185, 97 A.2d 741 (App.Div.1953).

The earlier cases on the subject of unexplained flight say that it raises 'some presumption of guilt akin to the presumptions deemed to arise upon the fabrication of false evidence, or the suppression of true evidence.' State v. Jaggers, 71 N.J.L. 281, 58 A. 1014 (E. & A.1904); State v. Harrington, 87 N.J.L. 713, 94 A. 623 (E. & A.1915). Later ones say that it raises 'an inference' of guilt. State v. Menzel, 136 N.J.L. 233, 52 A.2d 674 (Sup.Ct.1947), affirmed per curiam 137 N.J.L. 616, 61 A.2d 237 (E. & A.1948). And the latest expressions of the doctrine seem to be that such flight 'is a circumstance tending to prove consciousness of guilt.' State v. Centalonza, 18 N.J.Super. 154, 161, 86 A.2d 780, 784 (App.Div.1952); State v. D'Amato, supra, 26 N.J.Super. 188, 97 A.2d 741, 743. In fact, in D'Amato a flat statement that flight 'carries with it a...