On writ of error to the Essex County Oyer and Terminer Court.
For the plaintiff in error, J. Victor D'Aloia.
For the state, William A. Wachenfeld, prosecutor of the pleas, and Joseph E. Conlon, assistant prosecutor of the pleas.
The opinion of the court was delivered by
TRENCHARD, J. Melroyal Burrell, the plaintiff in error (hereafter called the defendant), was convicted in the Essex Oyer and Terminer of murder in the first degree without any recommendation of life imprisonment, on an indictment for the murder of Bella McCraw, and was sentenced to death. He brings up the entire record, and specifies causes for reversal, and also assigns errors on exceptions.
We deal first with defendant's contention that the verdict was against the weight of the evidence.
The state's evidence reasonably tended to show the following matters of fact: The decedent lived in an apartment with her husband and four children, George, seventeen years of age; Florence, fifteen; Tessie, fourteen and another, an infant three years old. For two years prior to the tragedy defendant lived with the family as a boarder. Decedent's husband was steadily employed, but defendant had not worked for some months prior to the day of the killing, and was practically supported by the family. Defendant from time to time had sexual intercourse with the decedent without her husband's knowledge. Some time prior to the tragedy the situation became unbearable to the decedent and she wished to get rid of defendant and on one occasion she called the police. This the defendant resented, having no money and no place to go, and he made up his mind to kill her. After frequent quarrels there was a quarrel on the day of the tragedy. Defendant locked the doors and terrorized the children, and by means of threats endeavored to get the children to distract the decedent's attention while he hit her with a monkey wrench. Some of the children refused, but Florence, the adopted daughter, after first refusing, said that she would do what he wanted. She engaged decedent's attention and the defendant approached with the monkey wrench in his hand and struck decedent on the back of the head. She did not fall immediately and defendant grabbed her and threw her on the bed and got on top of her. She was bleeding profusely and struggled desperately, but he "straddled her" and with his right hand on her throat he
choked her for "almost half an hour" until she was dead. Defendant then pulled down the window shades and, with the aid of the children, washed the blood from the walls and carpet, gave the rags and bed linen to George and instructed him to burn them in the yard; and George did burn some of them, and some were produced at the trial. Defendant gave George the monkey wrench and told him to hide it in the yard. George threw it in the alley and it was found by the police. Defendant took off his bloody shirt and gave it to George to burn, and put on a clean shirt. Then defendant went to a drug store and got alcohol with which he rubbed decedent's throat in an endeavor to remove evidence of strangulation. He changed the clothes of the decedent to remove the evidence of blood and violence. He arranged the head of decedent so that her chin rested on her chest. He then told the children, under a threat of death, that if anybody asked how she died they must say that a tall dark man knocked at the door, and that the decedent told him to come in, and she and he went into the bedroom, and later the man went out, and the children went into the room and found her dead. Thereafter defendant cut and filed his finger nails. When the husband returned from his work defendant told him that decedent died in a fainting spell. A physician was then called who examined the woman's heart and pronounced her dead and that she has been dead for four hours. Then the undertaker was called in and, finding evidence of violence, an autopsy was held at which it was determined that death had resulted from manual strangulation.
Such were the matters of facts which the jury, if they saw fit, could and no doubt did find.
The defendant gave various versions of the affair at different times, but his statement made to the police, which was admitted in evidence, confirmed many of the salient features of the state's case. That statement he made after being faced with the statements of the children as to the truth of the essential facts of the state's case, made by them as soon as they ascertained that the defendant was under arrest, and which they reiterated at the trial. The defendant at the trial,
while denying parts of his statement to the police, admitted that he had a quarrel with the decedent shortly before the tragedy. He admitted that he struck her in the head with a weapon. He testified that he did that because she had a pistol and threatened to shoot him. But the evidence taken as a whole clearly justified the jury in finding the fact to be otherwise, and that such threat, if any there was, had no relation whatsoever to the killing. Clearly the verdict was not against the weight of the evidence.
It is next said that there should be a reversal because the trial judge sustained the prosecutor's objection to the following question during the cross-examination of the state's witness, Dr. Bianchi: "Q. What did you say to the little girl and what did the little girl say to you in the presence of this defendant and her father at the house before or during or after you made the stethoscopic examination?"
We think not. The physician had testified that after the tragedy he was called in with the information that decedent had a fainting spell, and when he got there and examined her he found that she had been dead for about four hours. The question put to him on cross-examination by defendant's counsel we think was properly excluded. What the little girl said was not, nor was it contended to be, a part of the res gestoe. It may well be that what she said might have been asked by the state, but that was not done. No foundation had been ...