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State v. Close

Decided: February 3, 1930.


On error to Union County Court of Oyer and Terminer.

For the plaintiff in error, Francis A. Gordon.

For the defendant in error, Abe J. David, prosecutor, and Walter C. Tenney, assistant prosecutor of the pleas.


The opinion of the court was delivered by

WALKER, CHANCELLOR. The plaintiff in error was convicted in the Union Oyer and Terminer of murder in the first degree without recommendation, and sentenced to death. He brings error into this court and removes here the entire record of proceedings had upon the trial of the cause, together with the bill of exceptions signed and sealed.

The brief on behalf of the defendant in error starts with the assertion that "the facts in the case are set forth in the brief filed on behalf of the plaintiff in error in this cause under the headings of Facts and Defenses, and the state does not deem it necessary to repeat those facts in this brief."

This, in effect, is a statement that the facts as set forth in the brief of the plaintiff in error are true. And what the parties state as the facts of the case the court is willing to accept. Taken from the brief of the plaintiff in error they are as follows:


"Henry Colin Campbell, aged sixty-one, married, and the father of three children, was indicted May 14th, 1929, for

the murder of Mildred Mowry [also known as Parmelia Elizabeth Mowry]. On February 23d, 1929, about five-thirty A.M., a woman's body was found in flames on a public highway known as Springfield avenue, Cranford, New Jersey. In April, 1929, the body was identified as that of a Mrs. Benjamin Mowry, age about fifty-nine, a nurse of Greenville, Pennsylvania, who had been married to Campbell August 28th, 1928. April 11th, 1929, Campbell signed a typed statement at the Union county prosecutor's office, wherein he admitted shooting Mrs. Mowry in the head and then pouring gasoline over her and setting her on fire. The statement contained the following:

"There was nothing between us that prompted me to do this except for the reason that I could not maintain two establishments.

"I did not intend to marry this woman originally, but I married her thinking it might relieve me of some of my financial difficulties. I had been in financial difficulties for the past two years or more."

It should be remarked that the statement concludes:

"I am making this statement voluntarily and freely and without any promises of any kind or any threats.


Campbell is the name he certified was his; he so signed the statement and is called by that name throughout the case.

Evidence was offered for the defense, and witnesses for the state were cross-examined in an effort to establish the mental state of the accused at the time of the shooting to prove that the homicide lacked premeditation and deliberation, and therefore the crime was not above second degree murder. Insanity was not the defense.

Counsel for the plaintiff in error in his brief says that assuming the defendant entertained in his mind a design to kill, the manner of the execution dispels the conclusion that the intent ripened into design as the result of deliberation. There is no dispute but that the statement, which was a confession, was voluntary, the argument being that even it did

not show a design on the part of the defendant to kill the deceased.

The jury had before them all the facts, including the statement, and their judgment in finding the defendant guilty of murder in the first degree was that he did kill and murder the deceased with willfulness, deliberation and premeditation. The statement itself sufficiently indicates it, and that, read in connection with all of the testimony in the case, overwhelmingly proves it; and that beyond any reasonable doubt.

The plaintiff in error files thirty-two assignments of error and thirty-two causes for reversal, the latter being an exact duplication of the former; and argues them under the following heads: (1) The entire evidence showed lack of premeditation and deliberation; which is subdivided into (a) worry, (b) drugs, (c) bodily disease, (d) want of sleep and rest; (2) As to the crime itself; (3) As to the gun; (4) As to the can of gasoline; (5) There was no deliberation; (6) The verdict was against the weight of the evidence; (7) Rulings as to testimony; (8) As to tablets; (9) Requests to charge.

The burden of the defense made by the plaintiff in error and practically the only defense exploited throughout the case is the prostration of the mind of the defendant to that degree which rendered it incapable of forming the deliberate intention to commit murder. Most of the cases in this state on this question are those of drunkenness. But drunkenness is not the only factor which prostrates the mind, for, as stated by this court in Wilson v. State, 60 N.J.L. 171 (at p. 184): "If by law, deliberation and premeditation are essential elements of the crime, and by reason of drunkenness or any other ...

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