State v. Rosa

• Decision Date: 22 November 1905
• Parties: STATE v. ROSA.
• Court: New Jersey Supreme Court

62 A. 695

72 N.J.L. 462

STATE

v. ROSA.

Court of Errors and Appeals of New Jersey.

Nov. 22, 1905.

Error to Court of Oyer and Terminer, Bergen County.

Jerry Rosa was convicted of murder, and brings error. Affirmed.

See 58 Atl. 1010.

Peter W. Stagg, for plaintiff in error. Ernest Koester, for the State.

GUMMERE, C. J. The writ of error in this case brings up for review the conviction of Jerry Rosa upon an indictment charging him with the murder of one Demetrio Denofrio.

The first reason assigned for the setting aside of the conviction is that the trial court erred in ruling that a plea of autrefois acquit filed by the defendant did not set out the facts necessary to constitute that defense, and in sustaining the demurrer to that plea filed by the state. The plea was in the following words: "This defendant hereby pleads to the above indictment that he has been lawfully acquitted of the said offense charged in said indictment, in that he was heretofore, at the April term, 1904, lawfully indicted for the murder of one Benedetto Galante, who, by the evidence in said cause, was shot at the same time and place, by the same person, as Demetrio Denofrio, and that this defendant was tried at said April term, 1904, by a jury, and lawfully acquitted; and for that the entire facts of the shooting of both persons, Benedetto Galante and Demetrio Denofrio, were presented by the evidence before said jury, which was one and the same offense as charged by this indictment and passed upon by said jury. This defendant pleads that acquittal as a bar to the trial of this indictment." Ordinarily a plea of former acquittal raises an issue for the jury; but, where upon its face it is insufficient in substance, it may be so adjudged on demurrer. Commonwealth v. Bressant, 126 Mass. 246; Gormley v. State, 37 Ohio St. 120; Ency. Plead. & Prac. vol. 9, p. 640; Cyc. vol. 12, p. 368. The present plea, in our opinion, is manifestly insufficient in a substantial respect. Although it sets out that Galante was shot at the same time and place that Denofrio was, and that they were shot by the same person, it fails to allege or show that it was the same act which produced both homicides, and this is universally held to be the essential feature in a plea of this nature; for it is the character of the act, not the results which flow from it, which determines the question of the guilt or innocence of the person who does it. In State v. Cooper, 13 N. J. Law, 371, 25 Am. Dec. 490, a case of note in our reports upon this subject, it is said: "The writers concur in stating that these pleas 'must be upon a prosecution for the same identical act.'" And, although that case was decided over 70 years ago, an examination of the textbooks, and of the later decisions bearing upon this point, will disclose no change or modification of this rule. It is not intended to intimate that a common-law plea of former acquittal is bad unless it expressly alleges that the indictment under which the acquittal was had, and that to which the plea is interposed, rest upon one and the same act. It is enough if from the facts set out in the plea such an inference necessarily follows. But no such conclusion necessarily follows from the facts set out in the pleading now under consideration. Circumstances may readily be imagined, not at all contradictory of the plea, under which the killing of Galante would have been justifiable, and that of Denofrio criminal; each resulting from a separate act. For Instance, if Galante and Denofrio, being together, had met the defendant at night on the street (as was the fact), and Galante had attacked the defendant and attempted to rob him, Denofrio standing by and taking no part in the affair, but, on the contrary, remonstrating against it, and the defendant had, in resisting Galante, shot and killed him, his act would have been entirely justifiable (State v. Bonofiglio, 67 N. J. Law, 239, 52 Atl. 712, 54 Atl. 99, 91 Am. St. Rep. 423); but, if he had then immediately turned and shot and killed Denofrio, his act in doing so would have been criminal, unless Denofrio, notwithstanding his apparent opposition to his companion's act, was in reality a participator in it, aiding and abetting it, or, at least, unless the defendant had reasonable ground for so believing. In such a situation the "entire facts of the shooting of both persons" might justify an acquittal on the charge of feloniously killing the one, and a conviction on the charge of feloniously killing the other. As the plea does not show that the death of Galante and of Denofrio resulted from one and the same act of the defendant, we have not considered it necessary to decide the question whether an acquittal upon an indictment charging the felonious homicide of A. is a bar to a conviction upon an indictment charging the felonious homicide of B., when it is shown that the death of each was produced by the same act of the person indicted.

Other reasons, upon which the conviction before us is attacked, are rested upon alleged erroneous rulings of the trial court upon the admission and exclusion of evidence. It is first objected that the state was permitted to prove by two witnesses that the defendant, about three weeks before the homicide, exhibited a revolver to them, stating at the same time that there were a couple of his countrymen that he had a grudge in for, and that, if they bothered him, he was going to shoot them. The ground of objection is that the time of the making of the statement was "too remote" from the date of the homicide, and, further, that the defendant did not state that either of the two men against whom the threat was made was Denofrio. Why the time of making the statement was so remote as to render it incompetent we are not Informed by counsel, nor are we able to perceive for ourselves. Nor do we consider that the failure of the defendant to disclose the identity of the two men against whom h...