State v. Tolla

Citation72 N.J.L. 515,62 A. 675
PartiesSTATE v. TOLLA.
Decision Date22 November 1905
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Bergen County.

Antoinette Tolla was convicted of murder, and brings error. Affirmed.

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

REED, J. On the 4th of March, 1904, Antoinette Tolla shot with a pistol Joseph Sonta, who almost immediately died. For this homicide she was indicted, tried, and convicted of murder in the first degree. The judgment entered upon this conviction is brought into this court by this writ of error.

The first assignment of error pressed on behalf of the defendant is that the court erred in permitting the indictment to be amended. The defendant was indicted for killing John Sonta. It appeared upon the trial that the name of the deceased was "Guieseppe," the italian equivalent for the English "Joseph," instead of "John" Sonta. Being moved by the prosecutor, the court directed that the name of the deceased be changed from "John" to "Joseph." It is not denied that the terms of the thirty-fourth section of the criminal procedure act (Rev. Laws 1898, p. 878), if constitutional, conferred power upon the court to direct this amendment. This section provides that, if there shall appear to be a variance between the statement in any indictment and the evidence, in the name or description of any person alleged to be injured by the commission of the offense, it shall be lawful for the court, if it shall consider such variance not material to the merits of the case and that the defendant cannot be prejudiced thereby in his defense on the merits, to order the indictment to be amended. The insistence is that the Legislature had not the ability to equip the court with power to change an indictment which charged a crime upon one person into an indictment which charged a crime upon another person. If the legislation is invalid, it is because of the constitutional provision that no person shall be held to answer for any criminal offense except on the presentment or indictment of a grand jury. The grand jury presented the defendant for killing a person whose identity was certain. It was a person whose name was disclosed upon the trial to be "Joseph" instead of "John" Sonta. The grand jury knew that it was this person who was killed, and the defendant knew it. The amendment did not change the identity of the deceased, but only designated it in conformity with the facts developed. Nor was the man's name an essential part of the indictment in describing the crime. If the name of the deceased had been undiscoverable, the defendant could have been indicted for killing a person unknown. 1 Bishop, Criminal Procedure, § 495. There can be no doubt that, on the discovery of the real name, that name could have been inserted in the indictment by amendment The point now under consideration was made in the case of People v. Johnson, 104 N. T. 213-216, 10 N. E. 690, and it was held upon grounds entirely satisfactory that, the amendment being allowed under circumstances which assured to the accused party a full and fair hearing upon the only issue upon which the plea was material, the amendment was within the power of the court. There is a line of cases holding that, when permitted by a statute, a court has the power to change the name of the person upon whom injury has been inflicted or the name of the owner of property which has been the subject of larceny or other criminal act. State v. Hanks, 39 La. Ann. 234, 1 South. 458; People v. Herman, 45 Hun, 175; Garvin v. State, 52 Miss. 207; Miller v. State, 68 Miss. 221, 8 South 273; State v. Craighead, 32 Mo. 561; State v. Casavant, 64 Vt. 405, 23 Atl. 636; Rough v. Commonwealth, 78 Pa. 495. There was no error in directing the amendment

The remaining assignments of error are directed to the alleged erroneous exclusion of proffered testimony, to the reception of incompetent testimony, and to alleged errors in the charge of the trial justice. A proper appreciation of these assignments requires a brief statement of the homicidal occurrence. Joseph Sonta was a married man living near the family of John and Antoinette Tolla. The latter lived in two rooms over a store. They were all Italians, and were intimate. About 1 o'clock in the afternoon of March 4th, Joseph Sonta went to the rooms of the Tollas, where the Tollas, husband and wife, were. He sat down in a rocking-chair. After a little while the wife left the room and went over to the house of Sonta, where she saw Mrs. Sonta and her daughter Annie. After conversing with them a short time, she returned to her rooms and found Joseph Sonta still sitting in the rocking-chair smoking a pipe. She approached Sonta and shot him, killing him almost instantly. On her trial her defense was that she killed Sonta in defense of her honor and her life. She asserted that the reason she shot him was that he wanted to take her honor away from her, and that he wanted to kill her. For the purpose of showing the probability that she could have reasonably thought her honor or her life was in peril at the time she fired, testimony was tendered to show previous talks and conduct by Joseph Sonta, exhibiting a desire to dishonor her. The assignments from the sixth to the sixteenth inclusive, are directed to the exclusion by the trial justice of questions to the defendant inquiring if Sonta and she had had trouble, and what happened, and whether Sonta had asked her to have sexual intercourse, and whether Sonta, at one time when her husband was absent, had come into her house and attempted to drag her into the bedroom and have intercourse with her, and respecting statements she had made to the wife of Sonta. The last question was designed to show the probability of such antecedent conduct of Sonta, and such antecedent talk and conduct were designed to show that the defendant having knowledge of the disposition of Sonta could have reasonably inferred from what occurred at the time of the homicide that her life or honor was in eminent danger.

This line of proffered testimony stands upon the same footing as offers to prove previous threats by the deceased in homicide cases, or, by the prosecutor in cases of assault where the defendant sets up that he acted in self-defense. That previous threats or acts of violence afford no justification for an assault or homicidal act is entirely settled. Wharton's Criminal Evidence, § 757; Wharton's Homicide, §§ 482, 606. If all the testimony inferentially possible, in the light of what was offered and overruled, had been introduced, it would not in itself have afforded the slightest ground of justification for this homicide. Such a justification must have arisen from what occurred at the time the shot was fired. The testimony of the previous acts and threats was only admissible to illustrate some possible feature of the actual occurrence, which might, if thus illustrated, have led the jury to believe that the defendant had reasonable ground to conclude that her life or her honor was so menaced as to excuse the shooting. If it had appeared that Sonta was asleep, and she, knowing him to be asleep, had shot him, it would be absurd to say that any previous act of his, however bad, would have justified the shooting or modified the degree of criminality. Under such a condition of affairs, the proof of such acts would have been legally worthless as a basis for a legal verdict, and so irrelevant. It seems to be the logical conclusion that, unless at the time of the homicide the deceased did something to indicate a present intention to harm the defendant, there is nothing upon which the precedent acts can cast any light. There must be some present word or movement to be interpreted in the light of this knowledge of the disposition of the deceased. This view is supported by a great weight of authority. State v. Reed, 137 Mo. 125-137, 38 S. W. 574; State v. Byrd, 121 N. C. 684, 28 S. E. 353; State v. McGonigle, 14 Wash. 594-599, 45 Pac. 20; State v. Jackson, 33 La. Ann. 1087; State v. Janvier, 37 La. Ann. 645; State v. Pritchett, 22 Ala. 39, 58 Am. Dec. 250; Harrison v. State, 24 Ala. 71, 60 Am. Dec. 450; Hughey v. State, 47 Ala. 97; Creswell v. State, 14 Tex. App. 1; West v. State, 18 Tex. App. 644; Myers v. State, 33 Tex. 525; Evans v. State, 44 Miss. 762; State v. Scott, 26 N. C. 409, 42 Am. Dec. 148. In the state of New York, where it is permissible to show the reputation of the assailant who was killed for quarrelsomeness and vindictiveness, it was held, in Thomas v. People, 67 N. T. 222, that such testimony was only admissible when it was shown that the assault had been committed or threatened at the time when the homicide was committed, or immediately preceding it, or was intimately connected with it so as to justify the taking of life in self-defense. Such testimony was...

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9 cases
  • Commonwealth v. Di Stasio
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 7, 1936
    ...185 N.E. 376. The allowance of the amendment was not error. State v. Grossman, 94 N.J.Law, 301, 110 A. 711;State v. Tolla, 72 N.J.Law, 515, 62 A. 675,3 L.R.A. (N.S.) 523;State v. Haapanen, 129 Me. 28, 149 A. 389. The general validity of an indictment for murder in the statutory form was set......
  • Commonwealth v. Di Stasio
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 7, 1936
    ......16, 171 N.E. 890, 69 A.L.R. 1378. See, also, Attorney General v. Pelletier, 240 Mass. 264, 308, 134 N.E. 407; Rocco v. State, 37 Miss. 357, 368, 369. The amendment merely supplied a description of. the murdered man by his name, the omission of which would. have vitiated ...401, 412, 185 N.E. 376. The allowance of the amendment was not error. State. v. Grossman, 94 N.J.Law, 301, 110 A. 711; State v. Tolla, 72 N.J.Law, 515, 62 A. 675,3 L.R.A. (N.S.) 523;. State v. Haapanen, 129 Me. 28, 149 A. 389. . .           The. general validity ......
  • State v. Gambutti, A--291
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 14, 1955
    ...appears to be unsupported by the evidence. State v. Labriola, 75 N.J.L. 483, 67 A. 386 (E. & A.1907); State v. Tolla, 72 N.J.L. 515, 522, 62 A. 675, 3 L.R.A., N.S., 523 (E. & A.1905); State v. Cracker, 65 N.J.L. 410, 47 A. 643 Here, when the infant complainant was called to the stand the us......
  • Hare v. Pennell, A--346
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 28, 1955
    ...The law fixes no precise age within which children are absolutely excluded from giving evidence. State v. Tolla, 72 N.J.L. 515, 522, 62 A. 675, 3 L.R.A., N.S., 523 (E. & A.1905) (six-year-old boy permitted to testify), citing Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244......
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