On writ of error to the Union County Court of Oyer and Terminer.
For the plaintiffs in error, George E. Cutley (James P. Dolan, of counsel).
For the defendant in error, Abe J. David, prosecutor of the pleas, and Walter C. Tenney, assistant prosecutor of the pleas.
The opinion of the court was delivered by
TRENCHARD, J. The grand jury of Union county found an indictment against Canice Neary, William Fanning, Daniel
Grosso, Frank Kiekart and Benjamin Hass for the murder of John Enz, the driver of a mail truck, on October 14th, 1926.
There was a severance and the trial proceeded against Neary and Fanning alone, before a jury and the Common Pleas judge who had been requested to hold the Oyer and Terminer Court for that purpose pursuant to chapter 248 of the laws of 1928.
The defendants Neary and Fanning, upon this their separate trial, were convicted of murder in the first degree, with a recommendation of life imprisonment, and such a sentence was imposed.
At the trial the evidence reasonably tended to show that the defendants Neary and Fanning, together with Grosso, Kiekart and Hass (who were indicted but not then on trial) and two others (Cuniffe and Crowley who are dead and were not indicted), met in the city of Elizabeth and conspired and planned to rob the United States government mail truck driven by the decedent; that a few days later, armed with revolvers, sawed-off shot guns and machine guns, they executed that plan by holding up the truck and robbing it of many thousand dollars in money, and in the perpetration of that robbery killed the decedent, the driver of the truck, all of such named persons being present aiding and abetting in the robbery. The defendants on trial sought to establish an alibi as a defense.
The assignments of error and causes for reversal, each eight in number, are identical.
The only question raised by the first, second and fourth assignments of error is a challenge of the legal propriety of questions asked Kiekart (called by the state), about meeting and talking with Cuniffe about the proposed robbery.
The objections were that Cuniffe was not mentioned in the indictment and that the indictment did not charge conspiracy to ...