On error to Hunterdon Oyer and Terminer.
For the plaintiff in error, Egbert Rosecrans and Frederick A. Pope.
For the state, David T. Wilentz, attorney-general (Joseph Lanigan and Robert Peacock, assistant attorneys-general, and Anthony M. Hauck, Jr., prosecutor of the pleas, on the brief).
The opinion of the court was delivered by
PARKER, J. The plaintiff in error was indicted for murder by the grand jury of Hunterdon county, was tried in that
county and convicted of murder in the first degree without recommendation of life imprisonment, and brings this writ of error.
The victim of the alleged murder was Charles A. Lindbergh, Jr., a child less than two years old on March 1st, 1932, the date laid in the indictment. On that evening, according to the testimony, the child was put to bed about eight o'clock, and was left asleep in the house of his parents at East Amwell in the county of Hunterdon. About ten o'clock, when the nurse returned to the room, the child was missing, and indications detailed in the evidence pointed to a kidnapping. On the window sill was a letter testified to be in the handwriting of the defendant, demanding $50,000 ransom and signifying that later instructions as to method of payment would be forthcoming. This led to negotiations, in the course of which a number of other notes were received; and on the evening of April 2d, Dr. Condon, an agent of Colonel Lindbergh the father, met a man, who, as the state claimed and he testified was the defendant, at a cemetery in the Bronx, the money was paid in bills capable of later identification, the parents having already received as proof that the kidnapper had the child, a little sleeping suit which the child had on at the time of the kidnapping, and which figured as an important piece of evidence. The baby himself was never returned, and, as shown to the satisfaction of the jury by the evidence, had long been dead. His mutilated and decomposed body was accidentally discovered on May 12, in a shallow grave several miles away in the adjoining county of Mercer. The state claimed, and evidence supported the claim, that the autopsy disclosed the baby had suffered three violent fractures of the skull and that death was instantaneous.
As the result of investigations continued over many months, the detective and prosecuting authorities procured the arrest of the defendant, a resident of the Bronx, on a charge of murder. He resisted extradition, but was ultimately surrendered by the New York state authorities. The present indictment was returned on October 8th, 1934, and the trial began January 2d, 1935, and continued until February 13, 1935, on which day defendant was found guilty as above stated, and
sentenced to suffer the death penalty. Argument on the writ of error was deferred until June 20th at the special request of counsel for the plaintiff in error, and to afford them time to procure the printing of the ten-volume state of the case. It is not necessary at this point to go into an extended discussion of the evidence. Certain special features of it will be considered in connection with the several points made for reversal and particularly in connection with weight of evidence. It is proper to note, however, as a matter of common knowledge, the existence of great popular excitement before and throughout the trial, and of a crowded court room at all stages of the case.
The case is brought up both on bill of exceptions, and on a certificate of the entire record of proceedings at the trial pursuant to section 136 of the Criminal Procedure act. Comp. Stat., p. 1863. The assignments of error are arranged in Groups A to R, inclusive: the causes for reversal under the additional statutory review run similarly from A to V. They are not identical throughout. The fundamental inquiry, in the language of the cited statute, is whether defendant on the trial "suffered manifest wrong and injury, either in the admission or rejection of testimony * * * or in the charge of the court, or in the denial of any matter by the court which was a matter of discretion, * * * provided, no judgment * * * shall be reversed for any * * * error except such as shall or may have prejudiced the defendant in maintaining his defense upon the merits."
As to the corpus delicti, little or no question was raised. The identity of the dead child was expressly admitted. The question whether an indictment would lie in Hunterdon was vigorously argued. Apart from this, the main contest was over the question whether defendant was the guilty man, the state claiming that he was, and he claiming the contrary, that he was never at the place of the crime, knew nothing about it, and had nothing to do with it. Certain questions of law were argued below and again in this court. The brief for plaintiff in error, which was followed at the argument, presented the case under sixteen points, grouping assignments of error and causes for reversal where they are cognate; and
these points will be considered in the order appearing on the brief.
Point I is that "the summation of the attorney-general violated the legal and constitutional rights of the defendant."
As may be surmised, the summation on both sides was lengthy. That by Mr. Reilly, of the New York bar, for the defense, covers one hundred pages of the printed case; that by the attorney-general, one hundred and thirty-five pages. From this latter counsel for plaintiff in error have extracted a number of passages, which, as they claim, amounted to illegal and unconstitutional abuse of the rights and privileges of an arguing advocate and charge error on the part of the trial judge in failing to intervene and restrict the speaker to his legitimate line of argument. Some are expressive of a belief in defendant's guilt on the part of prosecuting officers; some are vituperative characterizations of defendant, given his guilt. One or more intimate that the jury would be guilty of a crime in failing to convict. But we find no legal error properly raised. Throughout the lengthy summation it was at one juncture, and one only, that defense counsel interposed with an objection that the state counsel was going outside the evidence. We shall return to this presently. With that exception the four lawyers representing defendant and employed by him, said nothing by way of protest.
The pertinent rule in this state is well settled, and was enunciated in this court by the late Chancellor Walker in State v. Terry, 91 N.J.L. 539, 543, where he said:
"The rule in this state, undoubtedly, is, that where counsel in summing up to the jury, goes outside of the testimony and makes appeals based upon facts which have not been proved, but rest upon his unsupported assertions, the party injuriously affected must, in order to be relieved, move the trial judge to order the remarks stricken out and to charge the jury that they should be disregarded; an objection only to the illegal remarks does not require the trial judge to strike them out of his own motion, and unless counsel requests their elimination no ground for review is laid."
In State v. Barker, 68 N.J.L. 19, a Supreme Court case, opinion by the late Chief Justice Gummere, it was held:
"Where the testimony, introduced at the trial of an indictment, clearly shows the guilt of the accused, a statement made by the prosecutor of the pleas, in his summing up to the jury, that 'a verdict of acquittal would be a miscarriage of justice,' affords no ground of exception."
In State v. Lang, 75 N.J.L. 1 (at p. 7), the Supreme Court held the prosecuting attorney, in view of the evidence, to be within his privilege in describing the defendant, as "a monster in his passions, licentious in his desires, beastly in his love, brutal when thwarted and cowardly when caught." The case came to this court on writ of error (Id., p. 502), and the judgment was affirmed for the reasons stated in the Supreme Court opinion (see page 513) except on the point of a challenge to the jury. On that point alone it was carried to the Supreme Court of the United States and again affirmed. 209 U.S. 467; 52 L. Ed. 894. The abstract of counsel's brief shows that no other point was even suggested.
In State v. Biango, 79 N.J.L. 523, this court held that improper remarks by prosecutor in the absence of timely objection and request for action by the court, are no basis for reversal either on strict writ of error or under section 136, supra.
In State v. McCormack, 93 N.J.L. 287, the prosecutor, in summing up, said: "Would I, district attorney, having delved in this case for months, urge this prosecution if I did not believe what the prosecutrix said was true?" The Supreme Court said this was improper; but pointed out that when defendant's counsel objected and asked that the remarks be withdrawn, the prosecutor at once withdrew them and asked that they be disregarded. This was in accord with the practice outlined in State v. Terry. The McCormack case came to this court and the judgment was affirmed on the opinion of the Supreme Court. 94 Id. 262.
In State v. Corson, 108 N.J.L. 12, the prosecutor during his summation made a prejudicial remark not justified by the proofs. Counsel for defendant asked the court to withdraw a juror and award a mistrial; but the Supreme Court pointed out the rule in State v. Terry, and said that in such a case the party injuriously affected must, in order to be
relieved, move the court to order the remarks stricken out and to charge the jury that they should be disregarded; and, this course not having been taken, no reversal could be had. The judgment was affirmed in this court (109 Id. 144), on the opinion of the Supreme Court except as to one point not here relevant.
The very recent case of Berger v. United States, 295 U.S. 78; 79 L. Ed. 667; 55 Sup. Ct. 629, is relied on for reversal on this phase of the present case. But as we read the opinion, the reversal is predicated on grossly improper conduct by the district attorney plus a weak case on the evidence, which latter is far from being the situation here. It may be well further to note that the leading counsel for the defense in the instant case, who summed up to the jury, anticipated the attorney-general when he remarked at the outset that "this is the crime of the century and it is the worst crime and the lowest type of crime ever committed, to my knowledge, according to any of the books I have ever read;" and as he was closing: "I have tried to be honest * * * I believe this man is absolutely innocent of murder." We are far from setting the seal of approval on any statement of the personal beliefs of counsel on either side as to the fact of guilt or innocence. But it is unnecessary to discuss the matter in detail, as we deem the rule in State v. Terry applicable, and that this case shows no such elements of factual weakness as the Berger case. Other pertinent decisions are State v. Lockman, 83 N.J.L. 168, and State v. Parker, Ibid. 172, 176.
At one point in the state summation there was an interruption and an objection, as already noted.
A witness named Sisk, sworn for the state, was under cross-examination, and testified as follows:
"Q. Now, isn't it a fact that after talking to Dr. Condon you had Dr. Condon imitate the voice of John at the cemetery and that imitation recorded on Victrola records? A. Why, we Q. Did you or not? A. Yes, sir, we did. Q. Where are those Victrola records? A. Well, there was only one record, and I believe that is in Washington. Q. May we obtain it? A. Yes, I suppose so. Q. Can you get it? A. It will take a couple of days."
Mr. Reilly, alluding to this in his summing up, said: "I challenged them -- I produced evidence that Condon repeated as best he could the voice he heard and it was made on a Victrola record and I challenged them to produce it and they admitted they had it and they don't bring it in here and they don't bring in the footprint. Now why? Because the footprint does not fit the defendant's, even the imitation of it. And then they talk about justice! Justice! Hang this man and cover up our sins."
The attorney-general in his reply said: "Then, counsel wants to know where is the phonograph record? Did you hear him ask Mr. Sisk, of the department of justice, if there was such a record, and did he have it, and would he produce it? Why, sure, that phonographic record has been alive and awake waiting for him to call for it, to put his voice in for you.
"I would have loved if you had heard the story all over again, Condon telling about this conversation, 'will I burn if the baby is dead? Are you German, John? No, I am Scandinavian. Have you got the money? No, I haven't got the money. Doesn't Colonel Lindbergh think we are the right party?'"
Mr. Reilly objected that this was "something which he assumes would be in the record, if it was called for * * *." The attorney-general explained that he was talking about Dr. Condon's testimony. Mr. Reilly admitted to the court that he had asked one of the witnesses about the record, and "would he bring it." The court ruled that the attorney-general had not gone outside the evidence, and the defense excepted.
But quite plainly, what the attorney-general was quoting was from the testimony of Condon, not from a phonograph record. The substance of what he quoted will be found in that testimony. The obvious construction to be placed upon the remarks of the attorney-general was that the defense were afraid to call for and produce the phonograph record because they felt that if produced and played before the jury it would be found to repeat what Dr. Condon had testified to in regard to his interview with the defendant at the cemetery. The
question whether the record could have been made admissible as evidence (see State v. Simon, 113 N.J.L. 521; 115 Id. 207) did not come up for consideration. We agree with the trial judge that counsel was within his rights in challenging the failure of the defense to call for the record as due to fear of what it might and probably would show.
In connection with Point I, and under a heading of I-A, it is argued that the attorney-general argued with, and bullied the defendant and other witnesses on cross-examination. So far as the defendant himself is concerned, a rigid cross-examination was fully warranted. The state's direct case against him was strong, and as already noted, the main defense was denial of any participation in the crime, or presence at the scene. Defendant had admitted false statements in the New York proceedings; he assumed an evasive attitude on cross-examination; he admitted a series of crimes, convictions and criminal escapes in Germany, two unsuccessful attempts, and a third successful attempt to make unlawful entry into this country. We can find no objection by his learned and astute counsel, except at one point, where one of his counsel intervened, saying, "well, I think this has gone just about far enough." The question just asked and not answered was withdrawn, and a short colloquy ensued, in the course of which counsel said: "It seems to me it is about time we protested against it. It has been going on for quite a while." The court: "Whenever you have any occasion to protest, you make your protest to the court while the thing is going on, and the court will deal with it; it always has and will continue to do so." The cross-examination proceeded without further objection for fifteen pages of the printed book; a question was then objected to and overruled unanswered, the judge saying, "yes, that is objectionable. I sustain the objection." The cross-examination then proceeded without substantial interruption for over one hundred pages more. Our conclusion on this point is that it is without merit.
Point II is that "there was a material variance in the theory of the state and the proofs." This grows out of the fact that the attorney-general in opening the case, and the prosecutor
of the pleas in his opening argument at the end of the proofs, relied upon the theory that the death of the child occurred when he was being taken out of the nursery down the ladder, which broke and he was precipitated to the ground; while the attorney-general argued in his closing summation that the child was beaten into insensibility in the nursery; and that perhaps the child was dead or insensible when removed from the house. But this latter was not the theory on which the case was submitted to the jury. And the substantial claim throughout was that the defendant feloniously opened the window, seized the child and its clothing, and attempted to escape through the window again, and that the injuries that caused the child's death were inflicted during the perpetration of that felonious and unlawful act. The variance, if such there was, made, and could have made no difference in the defense, which was that the defendant was not there. Moreover, there was apparently no objection made, no exception taken, no request for an opportunity to reply to the argument freshly presented, no request for a jury charge based thereon. It is urged that the court should have charged, as requested, that there was no evidence of a willful, deliberate and premeditated murder by the defendant. Again, the case was not submitted to the jury by the court on any such theory. It was submitted on one theory, and one alone, viz., of homicide in the perpetration of a burglary. No such situation existed as that in State v. Jones, 115 N.J. Law, 257, where at the last moment the theory of the prosecution shifted from robbery to burglary.
Point III is stated in the brief as follows:
"Public policy is the policy of the law expressed in and derived from the constitution, laws and judicial decisions."
This heading, of course, states nothing which is challenged as error; but the brief goes on to argue "that a reading of the specifications referring to the summation and a perusal of the summation itself should lead this court to the conclusion that there was a violation of a legal rule founded upon public policy, which rule, it is contended, requires that the prosecuting attorney must conduct the trial in accordance with
and confine his summation within the rules of law and that it further becomes the duty of the court to see that this ancient rule be followed. It would seem to be a weak answer to say that the defendant's counsel should have objected at every opportunity. Many reasons may be advanced why counsel for the defendant in this or any given case might not interpose objection. Nevertheless, trials are not entirely battles of wits and prosecuting attorneys and presiding judges are under a duty to every defendant to observe fundamental rules of law." The brief continues:
"It is also contended that the material variance between the openings, proofs, and summation, relating to the change as to the instrumentality causing death and the place where the death occurred, involving as it did a new theory of willful, deliberate and premeditated killing, resulted in a violation of a question of public policy; for it is a principle well grounded in the law that a defendant should be fairly apprised of the nature and cause of the accusation against him."
These two matters have just been fully treated with the result that we find no error.
However, while specifically admitting that there was only one objection and exception by defendant to the summation, and no exception taken specifically to the alleged variance, nevertheless counsel brought it to the attention of the court, and particularly excepted to that portion of the charge which permitted the jury to find as a matter of fact that the skull fracture was inflicted while the child was being carried down the ladder, and when the ladder broke. Counsel challenged this as not justified by the evidence and as being contrary to the state's theory that the fatal blow was struck while the child was still in the nursery. All this has been already gone over and needs no further comment, except in reply to the reliance of the plaintiff in error on the opinion in this court in State v. O'Leary, 110 N.J.L. 36, where we held that in that case the absence of an exception would not bar a reversal, and placed this on grounds of public policy. However, a glance at that case will show a fundamentally different situation, in that the trial court in the conduct of a murder case disregarded one of the most fundamental rules of the court
procedure in such cases, viz., that the jury should be sequestered during the trial; and in fact permitted the members of the jury to disperse to their homes. This was indeed a case of public policy, but does not require the extension of the rule to what may be described as ordinary trial error.
We deem Point III therefore to be without substance.
Point IV is a challenge in another form to the summing up by the attorney-general and reads as follows:
"The defendant's constitutional rights under the fourteenth amendment of the constitution of the United States were contravened by the summation and material variance of theory."
This is said to be in violation of the fourteenth amendment. Without repeating here what has already been said under the first point, we conclude that there was no such infringement of the federal constitution.
Point V is headed "The venue was improperly laid in Hunterdon county instead of Mercer county." What is meant is that the indictment, if any, should have been found in Mercer county and tried there. It will be remembered that the child when stolen was in Hunterdon, and that the body was found in Mercer. Counsel of course recognized the provisions of section 59 of our "Criminal Procedure act" (Comp. Stat., p. 1839) that where there is a felonious striking in one county, and death therefrom occurs in another county, the indictment may be found in either. Parallel with this is section 60, covering cases where the felonious striking is without the state, and death in the state. The case of State v. James, 96 N.J.L. 132, was a case covered by section 59; under section 60 we have the recent cases of State v. Lang, 108 Id. 98, and State v. Frazer, in the same volume at page 504. The gist of the argument, both orally and in the brief, was and is that there was no evidence to justify the jury in a finding that there was any felonious striking in Hunterdon county. The court charged ...