On writ of error to the Hudson County Oyer and Terminer Court.
For the plaintiff in error, Alexander Simpson and Mortimer Neuman.
For the defendant in error, John Drewen, prosecutor of the pleas.
The opinion of the court was delivered by
TRENCHARD, J. The plaintiff in error (hereinafter called the defendant), was convicted of murder in the first degree, and was sentenced to death. The case is now up for review on bills of exception and on specifications of causes for reversal on the entire record of the proceedings had upon the trial under section 136 of the Criminal Procedure act. (Comp. Stat., p. 1863.)
The state's case, as exhibited by its proofs at the trial, was this: The decedent, Stanley Zendarski, was a policeman in Bayonne. He was killed at or about one-thirty A.M., July 4th, 1930. In his company at the time was his fellow officer, Edward Hanak. Both were in uniform and on duty. They were in the act of leaving a saloon. There was an electric light in front. Near the saloon was a patrol box to which [108 NJL Page 86] the policemen resorted hourly. Hanak had entered the saloon for the purpose of using the toilet. When he left the toilet he saw his fellow officer, the decedent, standing near the doorway opening on the street. Decedent motioned Hanak to come to him. He then whispered to his fellow officer, "the kid from New street is going to get me," and immediately the two policemen passed through the doorway into the street, the decedent first and his fellow officer immediately behind him. Their revolvers were in their holsters and their blouses were buttoned over them. The instant that decedent passed through the doorway, the defendant, from a position near the curb, about eight feet from the two policemen, began firing from a revolver directly at the decedent, firing five or six shots. Decedent was fatally wounded and fell, and died within an hour. Defendant backed towards the centre of the street, firing as he went, and then turned and ran. Hanak, the other officer, was shot in the left ankle. Both officers, after they had been wounded, fired one or two shots at the defendant while the latter was in flight and after he had emptied his revolver at decedent. Hanak then limped to the street and jumped upon the running board of a passing automobile and tried to overtake the defendant, but was obliged to give up the chase by reason of exhaustion, and he was taken to the hospital. Other citizens saw defendant running away, with his hand on his hip. One yelled "there he goes," and then defendant threw a shining object over a fence where it was heard to fall, and upon search by the police and others, the revolver, with six empty shells freshly discharged, was found where it had been thrown, which revolver was afterwards identified by the defendant as his. Promptly after the shooting numerous citizens and policemen arrived on the scene and in the immediate neighborhood, and within an hour and a half the police arrested the defendant at his home where he lived with his parents and two grown brothers a few blocks from the scene of the killing. At that time the defendant was twenty-four years old and unmarried. He was well known to the police as "the kid from New street," but his real name was unknown, he having concealed it from [108 NJL Page 87] the police. Decedent had "frisked" the defendant late at night on the streets more than once, and two months before the killing had arrested him. At that time he gave a false name. On the latter occasion defendant asked decedent, in the presence of three other officers, to "let him go." The officer refused, whereupon the defendant said to the decedent, "all right; I will get you for this." When the defendant was arrested at his home an hour and a half after the killing, his father interfered, and the defendant said, "if you's lay a hand on my father you's will get the same as they got." Without more ado defendant was taken to the police station. At the time of the arrest the police searched defendant's home and found a revolver, not the one used in the killing. They found in his pockets twenty loaded cartridges of a size and caliber to fit the revolver thrown away by the defendant. The defendant, when questioned by the police, at first denied the killing; but the same morning he requested to be taken to Hanak's bedside at the hospital. He was there identified by Hanak as the man who did the shooting. Defendant there said, "I didn't mean to shoot you, Eddie." He was asked by the police why he shot decedent. He replied, "you know what he called me." He was asked, "what did he call you?" He replied, "he called me a son-of-a-bitch." He was asked, "is that the reason you shot him?" and he did not answer. The defendant then asked, "how is Stanley?" The police said, "we will show you Stanley" and they took him to the morgue and showed him Stanley's dead body. They asked him if he did it and he did not answer. They took the defendant back to police headquarters. Then the defendant asked for a drink of water and a cigarette, and he got them. He then said, "all right; I will tell you." Thereupon the defendant made and signed the written confession which was admitted in evidence. Therein he said that he wanted "to get even" with decedent because the latter had treated him so "ruff" when arrested two months before; he told that he had frequently said that he would "get even" with decedent; he told of the formation of his plan and how he executed it; he said that he fired six shots at the decedent, emptying his
revolver; he said that he wanted "to shoot Stanley in the leg so as to scare him, so he would keep away from me;" he identified the revolver which he used in the killing; he told how and when he got it and where he got the cartridges; he told how, after firing, he turned and ran and threw the empty revolver over the fence at the very spot where it was found.
Over against all this clear, cogent and convincing proof by the state we have the testimony of the defendant at the trial. He testified that he left his home about nine P.M. and returned "about one-twenty A.M.;" that he had no pistol and did not fire the fatal shots. He admitted, however, that early in the night decedent "had an argument" with defendant's friend, who was the accompanying defendant, and chased his friend out of the saloon where the shooting afterwards occurred; he admitted that he had "no love" for the decedent; he admitted that he was on the streets or in saloons from nine P.M. until about one-twenty A.M.; he admitted that he was in front of the saloon where the shooting occurred on the early morning of July 4th, near the time of the shooting, and that from the outside he saw the decedent in the saloon; he admitted that "on occasions" he carried a revolver and that he had served a term in Sing Sing prison for abduction, and a term in the Elmira reformatory for robbery. He did not deny that at the hospital he had said, "I didn't mean to shoot you, Eddie."
We now deal with the points made by counsel for the defendant.
We think the admission of testimony that decedent said to his brother officer immediately before the shooting that "the kid from New street is going to get me," cannot result in reversal. It is unnecessary to determine whether or not that statement was a part of the res gestae. Its admission, if technically erroneous, was a harmless error. A judgment in a criminal case cannot be reversed for an error in law which was not, and could not have been, prejudicial to the defendant in maintaining his defense on the merits. State v. Calabrese, 107 N.J.L. 115; State v. Yarrow, 104 Id. 512;
State v. Scott, Ibid. 544. Here the other proofs, including the confession and admissions of the defendant, demonstrated beyond a reasonable doubt that the defendant was bent upon "getting" the decedent, and that he actually ...