On error to Bergen County Court of Oyer and Terminer.
For the plaintiff in error, Walter G. Winne.
For the defendant in error, John J. Breslin, Jr., and Leland F. Ferry.
The opinion of the court was delivered by
BODINE, J. The defendant, Edward J. McNamara, was found guilty of murder in the first degree and was sentenced to suffer the death penalty. He and the deceased Martin left Brooklyn, New York, sometime during the day of May 7th, 1935, and two days later participated in a bank robbery at Newburgh, New York, obtaining the sum of $14,376.86. On the evening of that day, about ten-thirty o'clock in the evening, an automobile pulled off the road in an isolated part
of the borough of Hohokus in Bergen county, and a shot, or shots were heard by several persons residing in the neighborhood. One of these witnesses was apparently observed by the driver of the car, the headlights were turned off and presently the car pulled away. These persons hesitating to leave their homes that night discovered the next morning the body of Martin near the point where the car had been. All identifying marks had been removed from his clothing save a little laundry tag.
The proofs indicated that Martin died a few hours after the shot or shots were heard. The wounds causing death were inflicted by the use of both a forty-five and thirty-eight calibre revolver. One of the wounds was in the abdomen, probably inflicted while he was standing, and there were two on the left side of the head and another on the right side. The shots were fired from close range as evidenced by powder marks. Around midnight on the same day (May 9th), McNamara and a gangster named Heal went to the house where Loretta Maher, the common law wife of Martin, was staying, and told her that Martin had been killed that night while they were riding with him. They said that he had been shot from a pursuing car. As before noted, the fact was that the wounds were in the abdomen and side of the head and could hardly have been so inflicted. They then handed her deceased's wallet in which there was $1,635. This money was not connected in any way with the money obtained in the bank robbery. The defendant did not take the stand in his own behalf.
On such proofs it was open to the jury to find that the wallet had been taken from the person of Martin after he had been killed. The money could have been part of his share of that obtained in the robbery of the bank, and they could find that Martin had been killed in order that his companions might obtain some of the money which he had in his possession.
Although the case was not tried on the theory that it was murder in the first degree as part of a robbery, the attendant robbery is persuasive evidence of motive and of preconceived
joint purpose to take life. When to such motive and the attendant killing is added the use of different weapons and the firing of shots at close range, the jury could well find a deliberate and premeditated intention to kill as defined in our statutes.
"To constitute murder in the first degree under our statute, there must be an intention to take life. No particular length of time need intervene between the formation of the purpose to kill and its execution. * * * It is enough that the design to kill be fully conceived and purposely ...