On error to the Essex County Court of Oyer and Terminer.
For the plaintiff in error, John A. Bernhard and Joseph M. Degnan.
For the defendant in error, Joseph L. Smith, prosecutor, and Joseph E. Conlon, assistant prosecutor of the pleas.
The opinion of the court was delivered by
WALKER, CHANCELLOR. The defendant, William Gimbel, was tried and convicted in the Essex Oyer and Terminer, of murder in the first degree for the killing of Paul Bohrer, on January 16th, 1930, and, there being no recommendation for life imprisonment, the defendant was sentenced to death. He brings error into this court, where the argument of his appeal is rested upon two propositions, (a) exceptions to the charge of the court as delivered, and (b) refusal to charge as requested by defendant.
The facts in the case are shortly these: On January 16th, 1930, defendant (twenty years of age) left his house, 46 New street, Belleville, about six-thirty o'clock A.M., carrying on his person a thirty-eight-calibre revolver, which he had stolen from the factory where he worked. The gun was fully loaded. At twelve-forty-five o'clock P.M., he entered the Atlantic and Pacific Tea Store, Belleville, as a young lady, the only customer, was leaving. The manager and a clerk were within. Defendant drew the revolver from his right-hand overcoat
pocket and said: "Stick 'em up," and also, "make it snappy or I'll plug you full of leads." The manager, under orders from defendant, went to the cash register and emptied its contents on the counter; he placed the money in a bag and then on orders from the defendant, he took off his wrist watch and placed that in the bag with the money. The clerk was standing in the rear of the store in accordance with orders from defendant, who, after taking the money and the wrist watch, ordered the manager and clerk to the rear of the store where he put them in a small room adjoining and closed the door and told them that if they left within five minutes he would "plug them full of lead."
Defendant then made his escape from the back door of the store and proceeded to run away, having in his possession the paper bag containing $57.81 cash belonging to the Atlantic and Pacific store, the wrist watch and the gun which he had used in the robbery. He walked down certain streets and thinking that he had been seen, started to run away. He ran through several streets and lots and during his flight was pursued by Paul Bohrer (deceased), Edward Maurer, the manager of the store, and several other persons. A Dodge truck was standing on the street and defendant approached it, apparently thinking the driver was on it and that he would make the driver take him away and that he would thus be enabled to make his escape. There was no driver on the truck, but Bohrer and Maurer were in the street in its rear. Gimbel fired two shots at these men, one bullet hit Bohrer in the abdomen, passing backward and downward to the right, through the vital organs and out of the body on the right side of the spine, as a result of which the stricken man afterwards died. Defendant then mounted the truck and continued his efforts to escape. He abandoned the truck near the building of the Federal Leather Company, which was between one and two miles away from the place where he mounted the truck. He entered the office of the leather company and asked the clerk at the information desk to call a taxicab for him. While in the office the manager entered, still in pursuit of the defendant. The latter hid behind the door and as the
manager came in he ran out again and continued his flight; he ran into an office and engaged a taxicab. He got into the rear seat of the cab, with the driver in his seat. At that moment one of the Belleville policemen, who was pursuing him in a police automobile, saw the defendant in the taxicab, jumped out of the police car, ran over to the taxi, where the defendant was making an effort to get his revolver out of his overcoat pocket. The officer grabbed the pocket and held up the gun and succeeded in getting it away from the defendant. He then grabbed the defendant and placed him under arrest.
On the same day defendant make a voluntary statement in writing, which was admitted in evidence in the case. It described the facts practically as above stated. It was an admission of guilt. When defendant was arrested there was found upon him the paper bag containing the money, and the wrist watch and the gun with which he shot the deceased.
In his statement he admits having fired two shots, but says he only fired one at the time he reached and boarded the truck and does not know if he hit anyone or not. But ...