On error to the Camden Oyer and Terminer. Plaintiff in error was convicted of murder in the first degree without recommendation. Affirmed.
For the plaintiff in error, John A. Penn.
For the state, Samuel P. Orlando, prosecutor of the Pleas.
The opinion of the court was delivered by
PERSKIE, J. At or about two o'clock on the morning of September 2d, 1934, the plaintiff in error, i.e., defendant below, and two other gangsters (all with criminal records) were perpetrating a robbery in a house of prostitution at 243 Sycamore street, Camden, New Jersey. At the point of guns or revolvers, or both, all those present were held up and made to turn over whatever moneys they had. At about the same time, William Feitz and Joseph Leonhardt, detectives of the police force of Camden, were patroling in what is called a police radio car the territory in which the house in question is located. For reasons not altogether clear but entirely immaterial here, Feitz concluded to go over to the house "to know what it was all about." Leonhardt remained in the car. While the robbery was in actual progress, Feitz rang the bell of the house to gain admittance. The proofs disclose, and it was open to the jury to find, if it so chose,
that one of the robbers said, "don't open it;" and that the defendant said, "open it, his money is as good as anybody else's." At all events Feitz entered the premises and as he did he said, "what's all this?" He apparently attempted to draw his revolver and, as he did, it was again open to the jury, on the proofs, to find, if it so chose -- that defendant said, "let him have it." And they did. Four bullets entered Feitz's body and made eight bullet wounds; three bullets entered his back and two of these came out through his chest; one came out in the muscular tissue in front, between the chest and the left arm and the other entered the right arm about three inches above the wrist. Officer Leonhardt, on hearing the shooting, got out of the car and found Feitz on the ground near the car. He was taken to the hospital and died a few minutes after his admission. The corpus delicti and the fact that death was due to bullet wounds were admitted. The identification of the defendant was positive. Defendant denied his guilt. He testified that he had no knowledge of the occurrence; that he was elsewhere at the time. He admitted that he was in the house that night but insisted that he left before the shooting. This is what he said, in substance, in explanation of his admitted presence in Camden that night. Although he lived in Philadelphia, yet, he went to Camden to attend a motion picture theatre and later decided to visit the disorderly house in question. When asked why he did not go to a theatre in the vicinity of his home, he said that he had seen all the pictures that were being shown or exhibited there, and, therefore, journeyed to Camden to find a picture that he had not seen. He insisted that he was alone while in Camden and alone while he visited the house; that he remained in the house for only about ten or fifteen minutes because there were too many people there. A rather weak and unconvincing story. At all events, a jury question was presented. He was found guilty of murder in the first degree without recommendation.
The proofs were not only not contrary to the weight of the evidence but fully justify the inescapable conclusion of defendant's guilt beyond a reasonable doubt.
We now approach the only other point raised and argued
in this case, which, in our opinion, merits further consideration. And that point is whether defendant "suffered manifest wrong or injury" by reason of the alleged erroneous refusal of the trial judge to grant the motion of his counsel for a postponement of the trial on the ground that he was not given sufficient time to prepare a defense between the day of his assignment by the court to the day set for trial.
This motion was made some few days before trial and again made at the very beginning of the actual trial. This appeal comes to us both on bill of exceptions and on a certificate of the entire record of the proceedings at trial. Section 136 of the Criminal Procedure act. 2 Comp. Stat. 1709-1910, p. 1863. Obviously, defendant's counsel invoked, and properly so, the rights accorded those accused in criminal proceedings, under the constitution of our state (article 1, paragraph 8), and those likewise accorded under our federal constitution, articles V, VI and XIV.
First: Reduced to their simplest terms these rights here are that the accused was entitled to have, as a matter of right, the assistance of counsel in his defense and that he could not be deprived ...