On error to the Ocean County Court of Oyer and Terminer.
For the plaintiff in error, Ira F. Smith.
For the defendant in error, James Mercer Davis and Wilfred H. Jayne, Jr.
The opinion of the court was delivered by
LLOYD, J. Harriet Evans, the plaintiff in error, was convicted of murder in the first degree without recommendation of life imprisonment, upon which conviction sentence of death was pronounced. On the writ of error we have before us the entire record and proceedings of the indictment and trial, and upon them assignments of error and causes for reversal are filed.
The indictment charged the plaintiff in error, Claude Carmichael, Madison Chapel and Lester Underdown jointly with the murder of Robert Evans. On motion of the state there was a severance of Carmichael and Chapel and the case proceeded to trial against the plaintiff in error and Underdown, both being convicted.
The crime on which the conviction rested was participation in the killing of Mrs. Evans' husband, Robert Evans, at their home on May 15th, 1930. The proofs in the case tended to show that the actual killing was by Underdown, and possibly Carmichael, and that the plaintiff in error was present, aiding and abetting in such killing.
The first reason relied on for reversal is that the court erroneously refused to charge the jury that there was no such thing as "distributing guilt." Just what is meant by this expression may not be entirely clear, but as counsel has
cited for authority the case of State v. Timmerari, 96 N.J.L. 442, it is probably intended as synonymous with "dividing culpability," an expression used in the opinion in the cited case. While the specific request was not dealt with in the charge, the jury was clearly instructed as to divided responsibility. It was told that each defendant stood alone in so far as guilt was concerned, and that the guilt or innocence of either did not affect the guilt or innocence of the other.
The second reason is that the court erroneously refused to define "malicious, willful, felonious and malice aforethought," as requested by plaintiff in error. It is sufficient to say that this was completely and correctly answered in the general instruction to the jury.
The third reason is that the court erred in refusing to charge and advise the jury as to the uncorroborated testimony of an accomplice. This instruction is claimed to have been asked in two requests reading as follows: "The court is requested to advise the jury that if the testimony of an alleged accomplice is uncorroborated, the defendant should not be convicted;" also "to caution the jury as to the care to be observed in considering testimony of alleged accomplices." The first was unsound (State v. Bove, 98 N.J.L. 350; affirmed, 98 Id. 576) and as to the second it was insufficient. If counsel had desired special instructions as to the credibility to be accorded the testimony of an accomplice, it was incumbent on him to formulate that instruction in specific language, in which case only would the court be apprised of the point with which it was intended it should deal.
The sixth request for instruction that the court explain to the jury the limitation of testimony where two or more are jointly indicted and tried together, like the last was wholly insufficient to bring ...