State v. Sgro, 132 advanced to 100A.

• Decision Date: 01 February 1932
• Docket Number: No. 132 advanced to 100A.,132 advanced to 100A.
• Citation: 158 A. 491
• Parties: STATE v. SGRO.
• Court: New Jersey Supreme Court

158 A. 491

STATE

v. SGRO.

No. 132 advanced to 100A.

Court of Errors and Appeals of New Jersey.

Feb. 1, 1932.

Syllabus by the Court.

1. In a trial for murder where the prosecutor stated in his opening, that, "At the end of the case I am going to ask you to bring in a verdict for the extreme penalty, not only as a punishment to him, but as an example to others," and counsel for the defendant did not ask the court to direct a mistrial or instruct the jury to disregard the statement, he cannot complain in this court that such statement was prejudicial.

2. Where a witness for the state testified on behalf of the state at the trial and such testimony was contradictory of an earlier written statement made by such witness and the prosecutor claims surprise, the trial court may permit the prosecutor to offer in evidence such self-contradictory statement for the purpose of neutralizing the effect of the testimony of such witness, and the admission of such a statement by the court is within its sound discretion.

3. The trial court should not direct a verdict of acquittal where there is plenty of circumstantial evidence of the guilt of the defendant, which if believed by the jury would justify them in rendering a verdict of guilty.

4. The failure of the defendant to testify in his own behalf creates no presumption of guilt, but if facts are testified to which concern the acts of the defendant, which he could deny, his failure to testify raises a strong presumption that he cannot truthfully deny them.

5. Where a jury after retiring returns to the courtroom and requests the judge to have testimony read to it by witnesses who testified on particular matters, the judge is not compelled to search out the testimony of various witnesses who testified on such matters and have such testimony read to the jury.

6. It is not for this court to determine, in order to support the verdict of guilty, that the testimony showed the guilt of the defendant beyond a reasonable doubt. The function of this court is to determine whether the verdict is against the weight of the evidence.

Error to Court of Oyer and Terminer, Essex County.

George Sgro was convicted of murder in the second degree, with a recommendation of mercy, and he brings error.

Judgment affirmed.

J. Victor D'Aloia, of Newark, for plaintiffs in error.

Joseph L. Smith, Pros, of the Pleas, and Joseph E. Conlon, Asst. Pros, of the Pleas, both of Newark, for defendant in error.

KAYS, J.

The plaintiff in error was tried before the Essex county court of oyer and terminer upon an indictment charging him with murder. The trial was heard before Hon. Daniel J. Brennan, judge of the court of common pleas. The jury rendered a verdict of guilty of murder in the second degree with the recommendation of mercy. The court sentenced the defendant to fifteen years' imprisonment at hard labor in the New Jersey State Prison. A writ of error was taken under the 135th and 136th sections of the Criminal Procedure Act.

The defendant was charged with killing one Louis Balducci, who apparently was a bootlegger. The shooting took place on September 12, 1930, at about 10:30 in the morning, on Seventh avenue, in the city of Newark, about opposite the store of one Harry Mayer. Deceased was removed to a city hospital and about four and a half months later died. The direct cause of his death, according to the testimony of Dr. Martland, was a bullet wound received at the aforesaid time.

The evidence shows that the defendant and the decedent had been acquaintances for several years; that the deceased owed the defendant about $200 which the defendant had attempted to collect on several occasions without success. The proofs also showed that at the time of the shooting the defendant, while driving his Nash sedan along Seventh avenue, Newark, saw the deceased in Mayer's store and called him out after stopping his own car on the opposite side of the street. The evidence further shows that the deceased walked across the street to the side of defendant's car and stood at the left side of the car conversing in loud tones with the defendant, and that after such conversation, or argument, the deceased turned and walked back toward the store and was shot down just as he reached the sidewalk. There was no direct evidence by any witness as to the proof who fired the shots. There was, however, circumstantial evidence that the shooting came from the defendant who was in the automobile and that such shooting caused the death of the decedent.

The first ground of reversal is that, "The trial court erroneously permitted the prosecutor to make a statement, in his opening to the jury, which was prejudicial to the defendant." The statement was as follows: "* * * At the end of the case I am going to ask you * * * to bring in a verdict for the extreme penalty, not only as a punishment to him, but as an example to others." It is contended that the last few words, "as an example to others," were improper and without justification and were injurious to such an extent to the defendant as to justify the court in reversing the conviction. It appears from the record of the case that counsel for the defendant asked for an exception to the statement. He did not request the court to direct a mistrial or to instruct the jury to disregard the statement. The statement by the prosecutor was justified for the reason that the punishment of a criminal is not only intended as a punishment to such criminal but also as a warning to others for the benefit of society. However, even though it was improper, the mere taking of an exception to a statement by the prosecutor...