On error to the Mercer Oyer and Terminer Court.
For the plaintiffs in error, William Reich and William J. Connor.
For the state, Erwin E. Marshall, prosecutor of the pleas, and Leo J. Rogers, assistant prosecutor.
The opinion of the court was delivered by
HEHER, J. Plaintiffs in error, Mule, DeStefano and Scarponi, were convicted of murder in the first degree, and sentenced
to death. They sued out a writ of error, and the entire record of the proceedings had upon the trial was, under section 136 of the Criminal Procedure act (2 Comp. Stat., p. 1863), returned with the bill of exceptions.
The decisive question, raised by a specification of causes for reversal, is whether there was misdirection in the instruction that each of the plaintiffs in error, if guilty of any offense under the indictment, is guilty of murder in the first degree. The victim of the homicide, John Szczytkowski, was the possessor of money which plaintiffs in error admittedly coveted, and the insistence of the state is that the homicide charged was "committed in perpetrating or attempting to perpetrate" the robbery of Szczytkowski, and that, consequently, it was murder in the first degree under sections 106 and 107 of the Crimes act. 2 Comp. Stat., pp. 1779, 1780; Pamph. L. 1917, p. 801.
Disposition of the question thus raised entails consideration of the evidence. The essential facts follow: Concededly, plaintiffs in error were moved, in the series of acts which eventuated in the homicide, by a common design to rob Szczytkowski. DeStefano conceived the evil scheme. On the afternoon of October 30th, 1933, he learned that Szczytkowski had on his person $500 in currency, withdrawn that day from his bank deposit for the purpose of making the final payment due under a contract for the construction of a dwelling house. He promptly sought out Mule, and imparted the information to him. They determined to take the money by force, and, within the hour, unfolded the plan to Scarponi, whose assistance was procured because DeStefano was known to the decedent, and Mule would not conduct the actual holdup alone. In an automobile owned and driven by DeStefano, they went directly to Szczytkowski's home on Indiana avenue, in the city of Trenton, DeStefano pointed out decedent's house to his confederates, and then brought his car to a stop at a point two blocks therefrom. With his knowledge, Mule and Scarponi each took a loaded revolver from the automobile, and proceeded to their destination. The two last-named testified that there was an express understanding
that DeStefano would await them there, and render assistance in effecting their escape after the perpetration of the robbery, and that upon their return, after an abortive attempt which resulted in the fatal shooting, they found that DeStefano had departed. The latter denied that such was the understanding, but acknowledged, as did his confederates in the crime, that they were to divide the proceeds of the robbery. DeStefano also admitted that, later that night, he communicated with Mule by telephone, and inquired: "how did they make out," and received the reply "all right;" and that shortly thereafter he met and conferred with him at an appointed place, unquestionably for the purpose of learning what had occurred, and of sharing in the proceeds of the criminal enterprise, and of planning for such action as might be deemed advisable to avoid the legal consequences of their crime. DeStefano said that the meeting did not take place until the next day, but Mule testified that they met that night, and that when he asked DeStefano why he "didn't wait," the latter replied: "I heard a shot and that is the reason I left." The revolvers were the property of Scarponi. They were in Mule's possession -- Scarponi, so it is said, had turned them over to him for the purpose of exchanging them for a shot gun -- and were placed in the automobile by Mule after he and DeStefano had planned the robbery, but before journeying to Scarponi's home to enlist his aid.
There is little or no substantial dispute in the testimony given by Mule and Scarponi as regards the fatal altercation with Szczytkowski. They arrived at the house between seven and seven-thirty o'clock on the evening in question. They ascended the steps leading to a porch that reached across the entire front of the house. The customary railing extended along the porch from the steps. Mule knocked on the door. Scarponi stood on the porch to his left, at a point where he could not be observed by those who came to the door. Scarponi thus concealed his presence, fearing that otherwise the deceased ...