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State v. Barth

Decided: January 10, 1935.


On error to the Essex County Court of Oyer and Terminer.

For the plaintiff in error, Samuel I. Kessler and James James L. McKenna.

For the state, William A. Wachenfeld, prosecutor of the pleas, and Joseph E. Conlon, first assistant prosecutor.


The opinion of the court was delivered by

PARKER, J. The plaintiff in error was convicted of murder in the first degree without recommendation of life imprisonment, and brings this writ of error. That he was guilty of murder in the first degree was frankly admitted on the argument. Indeed, the defendant tendered a plea of guilty at the outset of the trial. As a common law plea of guilty it could not be accepted, the statute forbidding that course. As a plea of non vult, the court in its discretion could accept it, the punishment in such case being imprisonment

for life, or as for murder in the second degree. Pamph. L. 1917, p. 801; Cum. Supp. Comp. Stat. 1924, p. 857. The trial court, on objection by the prosecutor, refused to accept the plea. We are informed in the brief of his counsel that "the defense offered no defense in bar, but took the stand and freely and frankly confessed the details of the crime." This may not be absolutely correct, but it does not require detailed analysis. One thing was quite clear: that the defendant sought to avert capital punishment; and to that end the evidence for defendant was mainly directed, in an attempt to obtain from the jury a recommendation of life imprisonment, which by the statute would be controlling on the court. Crimes act, section 108, as amended by Pamph. L. 1919, p. 303. The defendant testified (without objection by the state), to his sorrow and remorse, on realizing that he had killed a man; and the first group of assignments of error and specifications for reversal relates to the cross-examination of the defendant on this phase of the case. Defendant further undertook to testify to various details of his younger life and rearing, many of which the court excluded, and the second group of assignments and specifications relates to rulings on this line of testimony. Finally, the court, in response to a question from the jury, instructed them on the powers and duties of the Court of Pardons, and that instruction is challenged as erroneous.

The circumstances of the crime are short and simple. On April 6th, 1934, defendant entered the store of deceased Julius Friedman at Bloomfield and attempted a holdup at the muzzle of a revolver in the manner now familiar. There was a struggle, in the course of which Friedman was fatally shot, dying almost at once. Defendant fled without getting any money, but none the less his crime was murder in the first degree. Crimes act, section 107. Pamph. L. 1917, p. 801, supra.

On direct examination defendant testified that after going home he "was broken down, feeling terrible about the whole thing;" and that he told one of the police officers he was glad to get it off his chest, to let it come out, that he was

responsible for it, and that he was sorry it all happened. He said he got the pistol by mail order from Wisconsin, to take the place of one that he used to play with around the house and which was lost. Another and smaller revolver was in evidence, and this he said he had bought for $5 "from a fellow in the saloon" for no reason except that he liked to play with them. Still on direct, he gave a similar explanation of a set of brass knuckles: testified to taking out driver's licenses under a false name because he was on probation for stealing a car; and charged some stolen license plates against some associates, who borrowed the stolen car that he was using. Cross-examined, he admitted the Wisconsin revolver had been ordered in his sister's name; that he had filed the number off it; that the smaller gun he had gotten from a girl. He repeated his assurances of remorse, "felt bad, but I couldn't do nothing about it." He flatly denied having carried either the Wisconsin gun or the smaller gun after the homicide, and was then asked: "Q. On the 12th day of April, six days after you killed Friedman, did you go to a gas station in Cedar Grove?" (Objected to and allowed.) "A. Yes. Q. Did you stick that station up?" (Objected to and allowed.) "A. Why, yes, I was with Stanley." Over objection he testified that Stanley had then used the gun that killed Friedman, defendant being with Stanley and having given him the gun that same night, to use in the stickup.

"Q. All this time you felt terribly about having killed Friedman, didn't you? A. Well, I did, but I needed money bad enough."

The cross-examiner went on to elicit admissions that defendant, with one of the guns, had participated in a holdup of a store in Dover on April 24th; of a store in Bergenfield on April 27th; and with or without a gun himself, of a delicatessen store in Hackensack also on April 27th, and another in Bloomfield, April 28th. He admitted changing license plates on the car. All this was over objections and exceptions. The ...

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