On writ of error to Salem County Court of Oyer and Terminer.
For the plaintiff in error, Douglas V. Aitken.
For the defendant in error, W.A.W. Grier.
The opinion of the court was delivered by
DONGES, J. This is a writ of error directed to the Salem County Court of Oyer and Terminer to review the conviction of Charles Fithian of murder in the first degree without recommendation of life imprisonment. The case is brought up on assignments of error and specifications of causes for
reversal under the one hundred and thirty-sixth section of the Criminal Procedure act. Defendant was indicted with Peter Giordano and Henry Green for the killing of J. William MacCausland in a payroll robbery. On separate trial Giordano was convicted. Green is a fugitive.
The state's case shows that on the morning of October 24th, 1930, MacCausland was attacked while walking on the street in Salem with the payroll money in his possession. Three men participated in the crime, Fithian driving the car, and the other two attacking the deceased with guns and taking the money. In the course of the attack, one shot was fired, the bullet striking deceased in the back, piercing his spine and heart, and killing him. The shot was fired at close range. The proof was clear from the defendant's testimony that the three participants plotted the crime of robbery and jointly carried out the project, each having his allotted part in the crime. The only divergence in the testimony on essentials is as to who fired the shot that caused death. In view of the admitted participation of all three, it is not material who did fire the shot.
Defendant fled to Florida but returned north with the intention of surrendering. After evading the authorities again in South Jersey, he finally surrendered on October 30th, 1930. He then made a statement which was introduced in evidence. Defendant testified at the trial and gave almost exactly the same account of the holdup and killing as that given in the statement. He said the shot was fired by Giordano, who was the ringleader instigating the crime according to Fithian.
Five assignments of error are discussed in the plaintiff in error's brief.
1. It is urged that it was error to strike out the testimony of one Alice Thomas. This testimony was offered in an attempt to prevent the admission into evidence of the confession. It was to the effect that the prosecutor of the pleas had urged Miss Thomas to endeavor to get Fithian to surrender and had said that "it would be better if Charlie Fithian would give himself up." It is urged that this is proof that the confession
was made under promise of leniency. However, the incident occurred before Fithian was in custody; it was made, if at all, to Fithian's family; and had to do with his surrender and not with the making of the statement offered. We are of opinion that ...