State v. Fiore

94 N.J.L. 477 | N.J. | 1920

The opinion of the court was delivered -by

Parke's, J.

The defendants below, together with one Devlin, were convicted of murder in the second 'degree. The general circumstances of the crime axe stated in the opinion of the Supreme" Court and need not he here repeated.

The points pressed here are the same- dealt with by the Supreme Court, viz., the admission of a photograph of the body of the deceased; and alleged error in excluding manslaughter from the consideration of the jury.

With respect to the photograph, we agree with counsel for plaintiffs in error that its admission cannot he justified for the first reason given by the Supreme Court, which was that the defence, in effect, utilized or treated it as evidence and could not then he heard in objection to it.- This reasoning is not supported by the testimony before us. But the photograph was competent evidence. It was admitted only after the county physician, who had made an autopsy on the body, had testified that he recognized the picture as a photograph of the body examined by 'him, and which was eoncededly that of the slain man. Dr. Joyee, who had attended him after the' injury and until he died, also- testified to the correctness of the picture, especially as showing the injuries to- the head which caused death. This was a full compliance with the rule declared in the Supreme Court case of Goldsboro v. Central Railroad Co., 60 N. J. L. 49. See Wigm, Ev., §§ 793, 794. In fact, the only objection made was that the photograph, and the conditions under which it was taken, were too remote from the day of the alleged occurrence, being after the autopsy. That question was mainly, if not entirely, one of discretion of the trial court, and, as the attempt was to show the character of the injuries, there cannot be any doubt that such discretion was properly exercised.

On the other point, the elimination of manslaughter from the consideration of the jury, we agree substantially with the view's of the Supreme Court. Upon the evidence there could be no room for a verdict of involuntary manslaughter, for Devlin’s blow' with the piece of lead pipe, upon the head of deceased, ivas unquestionably intentional and not an act of carelessness. "We cannot see how1 the killing could have been voluntary manslaughter. It was done with a weapon properly characterized by the trial judge as deadly and whose use implied malice. There is nothing to show' that the pipe was used in the heat of passion engendered by any physical provocation by the deceased. He, the deceased, was going peacefully to his home and was followed thither by the three defendants. They had been warned, they claimed, that deceased had “a gun,” meaning a revolver, or pistol, and so the lead pipe was provided for use if the deceased showed fight when accosted. Devlin, who vised the pipe, was not drawn into any affray with the deceased, nor did he get into one by any accident. He voluntarily created a situation which he says he know or believed was fraught with danger to himself. All that was required for his own safety was to let the deceased pursue his way unmolested. Under circumstances like these, the alleged act of deceased in reaching for what is alleged to have been a firearm does not amount to legal provocation that will support a theory of voluntary manslaughter; even assuming, for present purposes, that such a threatening act would, under any circumstances, suffice as provocation. Consequently, the trial court was, under the authorities cited, in the Supreme Court, correct in instructing the jury that manslaughter could not be deduced from any theory of the case inferable from the evidence.

. The judgment will be affirmed.

For affirmance—Swayze, Trenoi-iard, Parker, Bergen, Minttjrn, White, ILeprenhejmer, Williams, Taylor, Gardner, Ackerson, JJ. 11.

For reversal—Fone.