State v. Rodia , 132 N.J.L. 199 ( 1944 )

Edward Rodia was convicted of the murder of his wife on December 29th, 1943. The jury did not recommend life imprisonment. It was with his razor that her throat was cut, the jugular vein and windpipe being severed. The couple had separated after he lost his employment. She later sold their car and furniture. On the day of the murder, he called upon her early in the evening in a borrowed car and took her for a ride. He then pulled to the side of the road and stopped the car. Just what then occurred can only be deduced from his story. Whether there was a dispute about money matters is not certain. At all events, he drove from the scene of her death and reported to the police.

His statement immediately after his arrest was as follows:"Q. And what did you do? A. I pulled the razor and I cut her. I got scared. Q. Do you know where you cut her? A. Yes, around the face somewhere. Q. What was your intention when you started to do the cutting? A. To go for both of us, me and her.Q. You thought it over before you started it and talked it over or was it your suggestion? A. We talked it over, did you say?Q. Yes. A. Yes, we talked it over. Q. You mean to tell me she agreed to die there with you? A. Both of us, yes, yes, but I was a bum and I didn't kill myself. I am going to die just the same. It makes no difference. I will just go a little later."

At the trial he testified that the statement was correct, except that part not quoted in which he said that he had asked for a part of the money realized from the sale of the property which had been turned over to her after the separation.

It is urged that there was error in overruling an objection to the following question propounded to the defendant upon cross-examination: "Were you ever convicted of the crime of atrocious assault and battery by cutting on the 13th day of April, 1928?" The answer was as follows: "I think I was, I think I was."

The question was predicated under legislative authority R.S. 2:97-13. The point is made that the prosecutor should not have included in his question the words "by cutting." In State v.Silver, 2 N.J. Mis. R. 479, the prosecutor asked the defendant, upon cross-examination, the duration of his sentence. The Supreme Court said: "If, instead of proving the convictions on cross-examination, the state had seen fit to produce the record of the conviction, that record would have shown the sentence as well as the conviction. It was not improper, therefore, for the state to prove by the cross-examination anything that would appear in the record." This ruling was affirmed, 101 N.J.L. 232. See, also, State v. Merra,103 Id. 361.

The crime of atrocious assault and battery is effected by maiming or wounding another. R.S. 2:110-1. It is usual in this state to charge in the indictment that the defendant did then and there "strike, beat, cut, lacerate, wound, maim and ill-treat" so and so. 2 Regan Schlosser, Criminal Law of New Jersey,Suggested Forms, Form 31, p. 1189.

The interrogation of the defendant as to previous convictions denounced in State v. Mount, 72 N.J.L. 365, did not relate to matters which would appear in the judgment record but to matters not of record, i.e., the bulk of the man assaulted. The defendant then being confronted with the man was asked as to the way he had made the scar on his face and many other matters which would not appear if the state had proved the conviction in a proper manner. Obviously, the state may not, on cross-examination of the defendant as to a previous conviction of crime, go into matters not of record. But the rule is as shown that it may go into matters which appear in the record of conviction.

The proof of the conviction by record would undoubtedly have shown the charge of cutting. So the question was proper and the defendant suffered no injury therefrom.

It is next urged that because the foreman of the jury first said that they had found the defendant guilty and was then told by the court that the verdict must recite the degree of the crime and then stated that the jury had found the defendant guilty of murder in the first degree that there was no proper verdict. There is no merit in this contention. The verdict as recorded and pronounced by the foreman was perfectly clear. The jurors were polled and each stated that they had found a verdict of murder in the first degree. There would be no reason whatever in directing the jury to retire and then return with the same verdict because of the foreman's inadvertence of speech which was quickly corrected and confirmed when the jury was polled.

There was proof in the case as to the defendant's mental age. Complaint is made that the trial court said in its charge: "It is my observation that the so-called mental age theory of the experts, at least as applied to adults, is based upon so arbitrary and unnatural a scale of ages as a standard, as to be utterly misleading to a layman and practically useless, in the administration of justice by trial by jury." The language finds support in State v. Schilling, 95 N.J.L. 145, and State v. Ehlers, 98 Id. 236. The test of insanity in this state is the rule laid down in McNaghton's Case (10 Clark Finnelly 200; 8 Eng. Reprint 718), and reaffirmed many times by this court. State v. Noel, 102 N.J.L. 659; State v.Carrigan, 93 Id. 268.

The purpose of injecting into the case all the testimony as to mental age was to show that the defendant was incapable of planning, premeditating or designing an intent to kill. The trial judge was most patient in receiving this evidence. The comment that he made was in all respects proper and perhaps too temperate. His right to comment was clear. State v.Jefferson, 129 N.J.L. 308.

There seems to be nothing in the objections offered to the rebuttal testimony that the life of the defendant and his wife had not always been one of love and accord. In his testimony he had sought so to show. The state merely produced evidence to overcome this testimony. It had a perfect right to show that proceedings had been instituted before a Philadelphia magistrate because of defendant's hostile acts towards his wife. This did not infringe the rule that in the trial for a particular crime evidence of guilt of other crimes may not be received. When the defendant sought to show a life of peace and harmony, the state was free to show otherwise, and this it did by proof of the proceedings in Philadelphia and by the testimony of those who had observed the contrary.

The other points argued have been carefully considered and are without merit sufficient to require further discussion.

The judgment is affirmed.