For the State of New Jersey, William A. W. Grier.
For the plaintiff in error, Henry Burt Ware and F. Newlin Acton.
The opinion of the court was delivered by
CASE, J. Edwin Danser, herein referred to as the defendant, was tried by a jury in the Salem Oyer and Terminer upon an indictment charging him with the murder of his wife, Ada Danser. He was found guilty in the first degree with recommendation of life imprisonment. The judgment of conviction is brought before us by defendant on writ of error and also under the one hundred and thirty-sixth section of the Criminal Procedure act.
Defendant and his wife conducted a roadhouse, with filling station and tourist cabins, at a cross-corner of the Harding highway in the township of Upper Penns Neck. The proofs show, without dispute, that the relations between defendant and his wife had been strained and quarrelsome, largely because of defendant's excessive drinking. After a short period of abstinence, defendant, on the day preceding the night of the tragedy, took his wife's automobile, rode about the neighboring country, did some drinking and met with a collision which badly damaged the car. Apparently the decedent was quite angry with the defendant because the latter had resumed his drinking and had had the automobile accident. There were disputes between the two which lasted into the night. Deceased went to bed in a small room in the house; defendant, in one of the tourist cabins. Another of the cabins was occupied by the Hoelin family, tourists from Minnesota.
There is some difference in the testimony as to subsequent events, but the jury would have been justified in finding from the evidence that: In the early hours of the morning Danser went to the house, rapped on the door and demanded admittance, saying, "we might as well have this out right away;" he entered the house and there was a heated argument in progress when the Hoelins fell asleep; Mrs. Hoelin was awakened sometime later by revolver shots and heard Danser say in an
angry voice, "die, God damn you, die;" there was then a period, estimated at ten minutes, of silence following which Danser was heard to say in a calm voice, "Ada, Ada why did you do this?"; there was no response to this remark and Danser came out, announced that his wife had shot herself, and called a maid who was sleeping in a cabin.
The state police were summoned and took first charge of the inquiry. Mrs. Danser was found lying on the floor of the small bedroom between the bed on which she had been lying and a couch on which Danser admitted he had been sitting after his entry into the house. Mrs. Danser was dead from the wound of a bullet which had entered her chest on the left side about an inch inside the breast nipple line and at about the level of the tenth rib, had traversed her body in a line almost straight back and slightly up and had come to rest under, but not breaking, the skin of her back. The revolver from which the bullet had been fired was lying on the floor. The weapon bore no fingerprints. It contained five chambers, also five shells of which three had been discharged and two were still loaded. A second bullet was found to have gone through the leg of a table at the foot of the bed about three and one-half inches above the floor, and a third to have passed through the doorway into the store and become embedded in the wall about sixteen and one-half inches above the floor.
The defendant's story is that, having been in the same room with his wife, he arose and went into an adjoining room to get a drink of water and that while he was out his wife obtained the revolver and fired the shots. It is in evidence from William A. Jones, a firearms expert, that the revolver, in firing the fatal shot, must have been held in a straight position, its point of discharge not less than two nor more than four inches from the nightgown which Mrs. Danser wore and that the pressure upon the trigger necessary to produce the revolver action was equivalent to about eight or ten pounds. Dr. Dunn, the physician who performed the postmortem, testified that the course taken by the bullet was such that, in his opinion, the discharging revolver must have been
in such position that Mrs. Danser could have fired it only by using her thumb in pressing the trigger.
Defendant chooses to encompass his assignments 14 to 16, inclusive, and reasons 1 to 16, inclusive, 18, 18 1/2, 20, 21 and 23 within the proposition that the verdict of murder in the first degree was against the weight of evidence. Pamph. L. 1921, ch. 349. That point may prevail only when it is clear that the verdict is the result of mistake, passion, prejudice or partiality. State v. Karpowitz, 98 N.J.L. 546; State v. Hauptmann, 115 Id. 412, 443. An examination of the proofs does not disclose any of these disqualifying factors. It is admitted that the decedent and the defendant were the only persons in the house at the time of the shooting. It follows, therefore, under the proofs, that the act either was suicidal or was committed by the defendant. The preliminary quarrels, the cooling period, the unprovoked leaving of his cabin by the defendant at an early morning hour and his entrance into the house with the purpose, announced in anger, of pursuing the dispute to a finality, the hateful words of damnation and death, the course of the bullets other than the one which entered Mrs. Danser's body and of that bullet also, the absence of all fingerprints from the ...