On appeal from the Essex County Court of Oyer and Terminer.
For the plaintiff in error, Edward R. McGlynn (Charles Basile, of counsel).
For the defendant in error, Joseph L. Smith.
The opinion of the court was delivered by
BODINE, J. Eugene Compo was convicted of murder in the first degree. The proofs show that on the evening of December 23d, 1930, he ordered, at closing time, the manager of a Butler Brothers chain grocery store to open up. Upon the manager's failure so to do, the defendant shot and killed him. The essential facts in the case were established by the testimony of a number of witnesses, as well as by statements made by Compo to the police, which the trial judge found on the proofs presented, were voluntarily given. The proofs abundantly support the finding.
It appears from the voluntary statements that the defendant and a companion determined to rob a man named Lynch, the manager of this store, anticipating that they could secure some three or four hundred dollars apiece. On the night of the attempt they waited in the vicinity until the customers had all left. While the manager was closing the store they went over, and one of them placed a revolver near his ribs and ordered him to stick up his hands and open up the store. His refusal resulted in his death.
On this state of the proofs, plaintiff in error argues the following point: There was no evidence to justify the finding by the jury that the shooting of the manager of the chain store occurred in the perpetration or attempt to perpetrate a felony.
The statutory definition of murder is as follows: "Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing or which shall be committed in perpetrating or attempting to perpetrate any arson, burglary, rape, robbery or sodomy, shall be murder in the first degree; and all other kinds of murder shall be murder in the second degree." 1 Cum. Supp. Comp. Stat. (1911-1924), "Crimes," §§ 52, 107.
The proofs show that the homicide was committed in the attempt to perpetrate a robbery. Section 120 of the Crimes act (2 Comp. Stat., p. 1785), defines robbery as follows: "Any person who shall forcibly take from the person of another,
money or personal goods and chattels of any value whatever, by violence, or putting him in fear, and his aiders, procurers and abettors, shall be guilty of a high misdemeanor * * *." This provision was embodied in our statutes in essentially the precise form at least as early as the revision of 1846 (Nixon's Digest, 167, § 38), and has been continuously on the statute books ever since. The common law definition of robbery has, notwithstanding, been uniformly approved and followed in cases where homicide has been committed in the perpetration of a robbery.
Chancellor Magie, speaking for this court, in State v. Lyons, 70 N.J.L. 635 (at p. 645), said: "Under the statute which makes killing in the perpetration or attempt to perpetrate the crime of robbery murder in the first degree, the court properly proceeded to define what robbery is. This is the language of the court: 'Robbery is stealing property with violence from the person or personal custody of another person. It is necessary, in order to constitute that crime, that the goods shall be on the person of the owner, or the owner's agent, or shall be in his presence and in his custody.'"
If we were at liberty to exscind from the proofs the order to the manager to stick up his hands, still we believe the words "to open up" evidence a purpose of feloniously taking property by means of violence from the person or personal custody of the manager of this store. In view of all the evidence in the case and particularly the testimony that the defendant, or his companion, was armed and that a revolver was applied to the ribs of the manager ...