State v. Tomasi
| Decision Date | 02 March 1908 |
| Citation | 69 A. 214,75 N.J.L. 739 |
| Parties | STATE v. TOMASI. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Court of Oyer and Terminer, Hunterdon County.
Michael Tomasi was convicted of murder in the first degree, and he brings error. Affirmed.
James M. Trimble and Nathan Kussy, for plaintiff in error. George K. Large, Prosecutor of the Pleas, and George H. Large, for the State.
The plaintiff in error was indicted in the Hunterdon oyer for the murder of a woman named Delia Congillo, upon trial was found guilty of murder in the first degree, and was thereupon sentenced to death. The present writ of error is sued out to test the legality of his conviction and sentence. There are bills of exceptions sealed to certain rulings of the trial court pursuant to section 135 of the criminal procedure act, and there is also a certificate of "the entire record of the proceedings had upon the trial," brought up pursuant to section 136. Plaintiff in error has filed assignments of error based upon the exceptions, and has also specified causes for reversal, as required by section 137 of the act mentioned. P. L. 1898, pp. 914, 915.
The first matter requiring mention is the mode in which the jury was selected. It is specified among the causes of reversal that "the said defendant was tried by a jury drawn in the ordinary way from the general panel, and not by a jury selected from a list of 48 jurors drawn from the box in the presence of the judge of the court of quarter sessions of said county or the clerk thereof from the general panel of jurors that had been summoned to attend at the term at which the said defendant was to be tried," etc. The reference is to the statutory requirement contained in section 82 of the criminal procedure act (P. L. 1898, p. 897). There is no evidence before us to support this specification. The record sets forth that the defendant was tried by a jury "impaneled and returned agreeably to the statute in such case made and provided." There is no bill of exceptions tending to negative the correctness of this recital, nor anything to show a challenge of the array. The printed book submitted to us contains a "list of the names of duly qualified jurors" drawn to serve at the term of court at which the defendant was tried, and this list appears to have been certified by the sheriff and by the judge of the court of common pleas as the general panel of jurors drawn for service at the term mentioned, pursuant to section 13 of the revised act concerning juries, as amended by the act of April 21, 1876 (P. L. 1876, p. 363; Gen. St. p. 1854, § 50). This list contains the names of 48 jurors. It forms, however, no part of the "record of the proceedings had upon the trial," within the meaning of section 136 of the criminal procedure act. Nor does that section admit of a review in this case with respect to the drawing of the jury, for the review is confined to error committed either in the admission or rejection of testimony, or in the charge of the court, or in the denial of any matter by the court which was a matter of discretion. The case shows no application to the discretion of the court with respect to the drawing or impaneling of the jury, and therefore, of course, no denial of a matter which lay in the court's discretion, for where there is no request there is no denial. State v. Valentina, 71 N J. Law, 552, 556, 60 Atl. 177. The point made in the argument is that under section 82 of the criminal procedure act it is essential that the list of 48 jurors to be served upon the defendant, and from which the jury is to be selected for his trial, shall be first drawn from the box containing the names of the general panel summoned to attend as jurors at the term at which the. defendant is to be tried. It may be sufficient to say that if this procedure be indeed made essential by the act, it was presumably followed in the present case, for the recital of the record that the trial jury was impaneled and returned agreeably to the statute is not overcome by anything that appears before us. But, in our opinion, the statute does not make it essential, in cases where the general panel of jurors contains precisely 48 names, that these names should be put into a box and withdrawn therefrom in order to determine the names of jurors to be served upon the defendant. The section of the jury act already cited (Gen. St. p. 1854, § 50) authorizes the court of common pleas to determine how many men shall be summoned as jurors to constitute the general panel. The number summoned may be 48, or may be either more or less than that number. Section 82 of the criminal procedure act (P. L. 1898, p. SOT) provides for a list of 48 jurors to be served upon the defendant in a capital case, and prescribes that "it shall be the duty of the sheriff or other proper officer to draw such list of 48 jurors, so to be served, from the box in the presence of the judge of the court of common picas of the county, or in the presence of the clerk of said court, from the general panel of jurors that may have been drawn and summoned to attend as jurors at the term at which such defendant is to be tried; but if 48 jurors shall not be so drawn and summoned, or if for any other reason the number of jurors drawn or summoned, shall be reduced below 48, then the said sheriff or officer shall add to the number so drawn and summoned as many more persons of the body of his county qualified to serve as jurors as shall make up the number of 48." Manifestly the formality of drawing the list of 48 jurors to be served upon the defendant is required only when the general panel consists of more than that number, the drawing being intended for the purpose of selecting 48 names out of a greater number. Where the general panel consists of more than 48, the drawing is essential. For the case of a general panel of less than 48 the section makes express provision. Provision is likewise made for a panel of 48 or more reduced below that number for any reason. In either of these cases the sheriff is to add to the number as many more names as shall make up the number of 48. But where the general panel consists of 48, and has not been reduced, the statute does not require the idle form of putting the 48 names into a box for the mere purpose of drawing out the same names. Therefore, assuming the question to be raised by the record, we find it to be without sub stance.
The next point deserving mention is the admission of the testimony of one Bishop concerning statements made by the deceased, in the absence of the defendant, after the infliction of the mortal wounds. The statements were admitted as dying declarations. It is argued that they were not properly admissible as such, because not made under the sense of impending death. There was, however, evidence tending to show that shortly before the interview between Bishop and the deceased, concerning which he testified, the deceased had received certain pistol shot wounds from which she shortly afterwards died; that she had declared that she was "wounded in the heart" and would be dead in about five minutes; that she had asked a friend to go with her to the hospital, stating that she wished to die in her arms; that a priest attended her and administered the last rites of the church; and that shortly after this ceremony the statement was made to Bishop concerning which objection is made. There was abundant evidence to justify the trial court in determining, as a matter of fact, that the deceased was under a sense of impending death at the time the declaration was made. In State v. Monich, 64 Atl. 1016, this court held that such a finding, if supported by any legal evidence, is not reviewable by ordinary writ of error. Nor is it reviewable under section 136 of the criminal procedure act (P. L. 1898, p. 915), unless there was "manifest wrong and injury" to the defendant in the admission of the dying declaration. Where the finding by the trial court of the preliminary fact upon which its admissibility rests is clearly justified by the evidence, the defendant cannot be said to have suffered any wrong in the premises.
The next point to be noticed is the overruling of evidence offered...
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