State v. Treficanto

• Decision Date: 20 May 1929
• Docket Number: No. 157.,157.
• Citation: 146 A. 313
• Parties: STATE v. TREFICANTO.
• Court: New Jersey Supreme Court

146 A. 313

STATE

v. TREFICANTO.

No. 157.

Court of Errors and Appeals of New Jersey.

May 20, 1929.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Essex County.

Gerardo Treficanto was convicted of murder in the first degree, and he brings error. Affirmed.

Harold Simandl, of Newark, for plaintiff in error.

Joseph L. Smith, Prosecutor of the Pleas, and Frank B. Bozza, Asst. Prosecutor of the Pleas, both of Newark, for the State.

WALKER, Chancellor. The defendant, Gerardo Treficanto, was indicted with Joseph Caputo for the murder of Ammiello Tamburro, on March 10, 1928. At the close of the evidence and on application for Caputo (no objection being made), verdict of acquittal was directed in his favor. On motion of counsel at the close of the case all testimony admitted against Caputo, and the statement admitted as having been made by him were ordered stricken from the record. The trial then proceeded against Treficanto alone, and at its conclusion the jury returned a verdict of guilty of murder in the first degree against him and recommended life imprisonment, which was afterwards imposed by the presiding judge. A writ of error was then sued out of this court to review the judgment.

There is no certificate of the chancellor in the printed transcript, disallowing a writ to the supreme court as a writ of grace, so that it might then be sued out of this court as a writ of right. In state v. Giberson, 94 N. J. Eq. 25, 119 A. 284, defendant was convicted of murder in the first degree with recommendation to life imprisonment, under P. L. 1919, p. 303, and that sentence was imposed; and at page 29 of 94 N. J. Eq. (119 A. 284), it was held that application in such a case for allowance of a writ of error should be made to the chancellor under the established procedure in this state. In State v. Merra, 99 N. J. Eq. 480, 134 A. 558, there were two defendants, one convicted of murder in the first degree without recommendation, and the other with recommendation, and application was made on behalf of both for a writ of error out of the supreme court, which was denied, and that permitted the prisoners to sue out the writ from this court; and the proceedings in both cases, although before the chancellor as a statutory magistrate or agent, were docketed in the court of chancery under P. L. 1915, p. 28.

Now, an examination of the files of the case at bar in the office of the clerk of this court, discloses the fact that a certified copy, by the clerk in chancery, of the chancellor's certificate denying the writ of error applied for, was filed, and that thereupon counsel for the prisoner sued out a writ of error from this court, which was in accordance with the procedure, and is right; but, counsel should have printed the certificate of denial with the record in this case, and relieved this court of sending for the original files to find out whether or not the statute in that behalf had been obeyed, and the established practice followed.

On behalf of Treficanto, the prosecutor of this writ, there are eleven assignments of error, and ten reasons for reversal, filed in the cause, in many respects the same; and the contentions for Treficanto are argued under five points. These will be taken up, considered and disposed of in their order.

1. "The verdict is against the weight of evidence."

The facts of the case are as follows: The killing took place in the apartment of Caputo, on the ground floor, rear, of No. 72 Hayes Street, Newark, and there were present at the time Joseph Caputo, Gerardo Treficanto (slayer) Ammiello Tamburro (deceased), Laura Smith, Louise Waldron and Mary Brennan.

Louise Waldron came to clean Treficanto's apartment on Saturday morning, March 10, 1928, as was her custom. About noon she went across the hall to Caputo's apartment. There she found Caputo, Laura Smith, Mary Brennan and Tamburro, the man who afterwards was shot; the party were drinking wine; Treficanto went over, refused a drink, and said to Louise Waldron: "Are you coming over?" (to his apartment), and she said: "In a few minutes," but did not go; she stayed with the company, eating and drinking. Treficanto went back several times, and at last she made an indecent and profane remark to him and he went back to his apartment and procured her coat and scarf, returned and threw them in her lap, slapped her face and went out. Later he came back with a small gun and began to shoot; Caputo had a gun in his hand and fired three shots; Waldron went out and saw a man (Tamburro) lying on the floor face downward; she says she heard three shots from each gun; Treficanto and Caputo were firing at each other. Treficanto then disappeared through the door and went into the yard, and then two shots came through the window. A member of the Newark police, as the result of information, overtook Treficanto on the street and searched him and found a 32 calibre revolver and a knife in his pockets, and took him into custody; the revolver and knife were identified upon the trial. Two officers went to the house and saw a man lying on the floor; this was Tamburro, the one who died; they made a search of Treficanto's and Caputo's apartments, found a box of bullets in the bureau in Treficanto's bedroom, and an automatic gun and revolver were found in the drawer where the bullets were. The autopsy on the body of Tamburro showed three bullet wounds, two of 22 calibre lead bullets and one of 32 calibre steel jacketed bullet; the cause of death being a bullet wound producing extensive hemorrhage into the pleural and abdominal cavities, with a combination of shock. All these facts are clearly to be spelled out of the testimony of Laura Smith, Mary Brennan, Harrison P. Martland, Thomas O'Mara, William A. Jaeger, Joseph Farrell, Frederick Schalk, Joseph Harris, Joseph Cocozza and Raffaele Capodonna. There were several other witnesses for the State, who gave rather unimportant testimony. The jury were clearly justified in finding that Treficanto shot and killed Tamburro, although doubtless he intended Caputo to be the victim.

Treficanto called two witnesses, Dr. Godfrey and John Sylvestro, who gave unimportant testimony. He himself testified, saying that Caputo remarked that on account of the woman (Waldron) they were going to kill each other; that he and Caputo drank some wine; that Caputo punched him, and he heard two shots and then fell on the floor and pulled out his gun, a 22, and shot twice from the floor, got up and shot twice in the air; that all were drunk and he did not remember himself (meaning, doubtless, he did not remember what happened); shot after he was hit, fired about four shots; denied that he fired any shots through the window; after firing, went into his room and put the gun in his bureau; the other guns there belonged to Louise Waldron (although she denied it), but one of them was his; he bought the box of automatic 32 calibre bullets in New York; when he took one gun back he put one, fully loaded, in his pocket, the one that was on him when arrested; also the knife, which he said he used to clean his pipe.

On March 12, 1928, Treficanto made a voluntary statement to Detectives Cocozza and Capodonna of the Newark police department. Its genuineness and voluntary character were not disputed on the argument. In it he said, among other things, that he called three or four times at Caputo's apartment for Louise Waldron and she at last told him to go to hell and he slapped her in the face; that Caputo became angry and he and his friends started to strike him and he heard three shots of a revolver and got out his 22 calibre revolver and fired five or six shots and went to his apartment and put the revolver in a bureau drawer and took his Smith and Wesson, of 32 calibre, and put it in his pocket and started to go out, when he was arrested; he identified both revolvers. Cocozza and Capodonna proved the statement, which was headed: "Voluntary Statement of Gerardo Treficanto," and was signed by him. Capodonna said that everything that Treficanto told was taken down; the statement was written in Italian by witness and translated into English. The original is in Italian. The translation is perfect and was signed by Treficanto.

Thus it will be seen that the weight of the evidence, to which Treficanto himself contributed by his testimony and his voluntary statement, was clearly with the State and not with the defendant.

Both sides then rested and the judge then said that he was of opinion that there should be a direction of a verdict in favor of Caputo; and as to the defendant Treficanto the case would be submitted to the jury for decision. The jury accordingly rendered a verdict of not guilty as to Caputo; and then, on motion, all testimony admitted against the defendant Caputo, and also his statement, were stricken out. The case was then submitted to the jury as to Treficanto alone, and (as already stated) they returned a verdict that he was guilty of murder in the first degree, and recommended him to imprisonment at hard labor for life; and to that he was sentenced.

On the question of a verdict being against the weight of the evidence in a criminal case, certain principles of law come in aid of a verdict of guilty. One is, that under P. L. 1921, p. 951, in all cases where the entire record is brought up with the writ of error, if from consideration of the entire evidence it appears that the verdict was not against its weight, the court will not go further and consider whether the defendant was guilty beyond a reasonable doubt. State v. Fischer, 97 N. J. Law, 34, 36, 117 A. 519, affirmed 98 N. J. Law, 293,118 A. 927.

To justify the setting aside of a verdict as against the weight of the evidence that fact must be so clear as to give rise to an inference that the verdict was the result of mistake, passion or prejudice. State v. Grace, 98 N. J. Law, 341, 119 A. 767; Leary v. W. J. & S. S. R. Co., 146 A. 359, 1 N. J. Misc. R. 549, 550, or...