On error to the Essex County Court of Oyer and Terminer.
For the plaintiffs in error, Irving Siegler, C. Stuart Patterson, J. Victor D'Aloia and John A. McLaughlin.
For the defendant in error, Joseph L. Smith and Simon L. Fisch.
The opinion of the court was delivered by
LLOYD, J. Appellants were convicted of murder in the first degree without recommendation to life imprisonment. Appealing they have filed twenty-two assignments of error and in substantially identical language the same number of reasons for reversal with an added one that the verdict was contrary to law and against the weight of the evidence.
The murder in this case, as the evidence fairly showed, was committed in the carrying out of a preconcerted plan to rob the Public Service Co-ordinated Transport Company by holding up George B. Lee, its cashier, at its bus station in Newark. The fact was established by overwhelming proof that the defendants with another man named Orlando, who was later killed in an encounter with the police in Chicago, met at 725 High street, Newark, in an apartment maintained by one Margaret Rosenthal, a place frequented by them and at which they had previously met and divided the fruits of other robberies. There on September 24th, 1928, the plans were laid to commit the robbery. Giampietro had once been employed by the Public Service Company as a bus driver and knew the layout of the premises in which the robbery was planned to be carried out, the offices, entrances and exits. He still retained his Public Service uniform and it was arranged that this uniform should be used as a means of easy access to the place. In the early morning of October 15th following, the defendants, with Orlando, proceeded to put their plans into execution. Arriving at the bus station they found Lee on duty behind the cashier's window. Four of the five entered the office. Lee, having retreated behind a partition of an adjoining room, was ordered to come out and on compliance with this direction, he was shot and killed by McBrien. Defendants then put the money into pillow cases which they had
brought with them, and McBrien called the telephone operator and reported that there had been a shooting at the place. Defendants then left in an automobile, and later Lee was found dead in the premises.
The various assignments of error and reasons for reversal are argued under eight points.
The first of these is that the judge erred in granting the state's motion for setting aside an order of severance which had been previously made granting to McBrien a separate trial. This, like the original motion for a severance, was a matter wholly within the discretion of the court. The theory that it makes an adjudication under which the legal status of the parties becomes res adjudicata is without substance. Though all of the defendants were named in the same indictment, but three of them had been arrested, and when the case was first called for trial on November 18th, 1929, McBrien not having been apprehended, a severance was ordered as to him. There was a mistrial, and later, McBrien being arrested, the order of severance previously granted was set aside. A severance is for the purpose of the trial only and the conditions existing at one time when a case is called for trial may be widely different from those existing at a later time. So it was here. There was no abuse of discretion in this, and in any event it is not shown that the defendants or any of them were prejudiced by the order in maintaining a defense upon the merits. The second point is that the court erred in denying a request reading as follows:
"Under this indictment for murder, a defendant may be convicted of murder in the first degree, murder in the second degree, or manslaughter as the evidence may show."
This request the court rightly refused. The proofs were all to the effect that the killing was in an attempt to commit a robbery. There was no other alternative, and, that being true, the section of the Crimes act which makes a killing under such circumstances murder ...