On writ of error to the Middlesex County Court of Oyer and Terminer.
For the plaintiff in error, Walter C. Sedam.
For the defendant in error, Douglas M. Hicks.
The opinion of the court was delivered by
DONGES, J. Plaintiff in error, Edward Metalski (hereinafter referred to as the defendant), was tried in the Middlesex Oyer and Terminer by a jury, upon an indictment charging him with the murder of one Warren G. Yenser, a state trooper, on November 9th, 1935. He was found guilty of murder in the first degree and sentenced to death. The judgment of conviction is before us on writ of error and also under the one hundred and thirty-sixth section of the Criminal Procedure act.
In the early morning of the date named, Yenser and Matey, state troopers, in a Ford sedan, were patrolling state highway No. 25, just west of New Brunswick. Matey was driving and Yenser was sitting to Matey's right. A coupe, with Pennsylvania license plates, was traveling eastwardly at a high rate of speed, and the troopers endeavored to overtake it. They temporarily lost trace of it, but again came up to it and pulled alongside of it and Trooper Yenser blew his whistle. The testimony was that both cars were then traveling between seventy-five and eighty miles an hour; that the coupe again shot forward; that the troopers again pulled up alongside of the coupe; and that as Yenser was about to blow his whistle again, a shot was fired, which struck Yenser in the face, causing almost immediate death.
It was undisputed that the coupe was occupied by the defendant and one Whitey Morton, who, at about two o'clock in the morning in question, had held up a tavern known as Palms Garden Cafe, on Ridge avenue, in Philadelphia, and were fleeing in a car which they had taken from a garage in Philadelphia without the knowledge of the garage attendant. After the shooting of Yenser, the defendant and Morton eluded pursuers and drove to Elizabeth, where they abandoned their automobile. Defendant was arrested in the Pennsylvania railroad station, in Elizabeth, at about seven o'clock
the same morning. Morton avoided capture and returned to Philadelphia, where, on November 11th, he committed suicide.
The coupe which was used by the defendant and Morton to escape from the scene of robbery was found to contain a sawed-off shotgun with two loaded shells, some empty shells, and two liquor bottles, partly filled. This shotgun was used by Morton in holding up the cafe, Metalski using a revolver. The hold-up apparently yielded $85 and two bottles of liquor. When captured Metalski had $40.40 in bills and change in his pocket.
The defense was that defendant was acting under coercion of Morton; that Morton demanded that defendant accompany him to Newark to see one Dorothy Johnson; that Morton endeavored to borrow money to cover the trip; that, failing in such efforts, Morton engineered the cafe robbery, in which defendant participated through fear of Morton; that defendant was driving the coupe at all times; that Morton fired the fatal shot, after breaking out the rear window of the coupe; that Morton gave no intimation of his intention to shoot at anyone; and that defendant did not knowingly aid or abet in the shooting.
Defendant admitted a number of convictions in New Jersey and elsewhere for various crimes, and that, at the time of the shooting of Yenser he was a fugitive from a prison camp in North Carolina, having escaped therefrom in August, 1935; and that on December 14th, 1935, he made his escape from the Middlesex county jail whilst awaiting trial on the indictment under consideration.
Defendant writes down thirty-three assignments of error and thirty-three identical specifications of causes for reversal, so that they will be dealt with together.
The first point argued is that there was error in the cross-examination of defendant (assignments and specifications Nos. 6, 7, 8, 9, 10, 11 and 12). We are not apprised by the assignments or specifications what particular questions are deemed to be objectionable, except that in No. 8, as to where defendant met Dot Johnson, the record discloses that this question was not pressed and not answered, and No. 10 which
charges that a question propounded to defendant as to whether he had made one or two trips to New Jersey with one Karens was error. The defendant's denial was not impeached. We think there was no harm done to the defendant, in any event.
The other assignments challenge the propriety of permitting defendant to be cross-examined touching former convictions. The argument appears to be that, when defendant in his direct examination testified to the former convictions, the state was precluded from examining him upon such convictions. The rule is well settled to the contrary. Section 1, Evidence act. Comp. Stat., p. 2217; State v. Rusnak, 108 N.J.L. 84. There was no error in this regard.
Point 2 (assignments 14 and 15) seeks to raise a question as to the propriety of questioning the common law wife of Morton as to his ability to drive an automobile. No appropriate assignment or specification is filed, but, on the merits, we see no injury by the examination.
Point 3 (assignments 16, 17 and 18) is directed to the examination of Captain Jones, produced by the state as a ballistics expert. We are not advised by the assignments or specifications what questions are deemed improper or harmful, but it is argued that it was error to permit the witness to testify that, in his opinion, a bullet taken from the radiator of the police car bore the same marks as those on a test bullet fired by the witness from a revolver found on defendant after his recapture following his escape from Middlesex county jail. We find no error in the respects complained of. Nor do we find error in the answer of the same witness to a question propounded by defendant's counsel as to how he thought defendant came into possession of the revolver that the witness believed was used on the night of the killing, that "he [defendant] knew where he left it, and went back and got it, possibly, after he got out." The answer was responsive to the question. No motion was made to strike it out, nor was any objection thereto made upon any ground. We see no error in this point.
Point 4 (assignment No. 20) deals with what the court said in his charge with respect to what deliberation was necessary
to make a killing murder in the first degree. The language referred to seems to be unobjectionable. The complaint is that the court apparently applied the definition to the defendant, who asserted he did not fire the shot. However, what the court said was that "whoever did kill this man" would be guilty of murder in the first degree, if it was done purposely, deliberately and with premeditation. He elsewhere left it to the jury to say who fired the shot and whether under the circumstances found, and under the law, the defendant if he did not fire it, would be guilty of murder. We see no merit in this point.
Point 5 (assignment No. 21) complains of a portion of the charge which recited some of the testimony as to how the shot was fired from the coupe and the testimony of the defendant as to the same matter, and left it to the jury to say whether the circumstances so testified to showed that the shot was fired with such deliberation and premeditation as to bring it within the statutory definition of murder of the first degree. From the argument submitted it is difficult to understand what harm it is claimed resulted or in what respect it is claimed the language of the court was inaccurate. We find no error therein.
Assignment No. 22, argued under point 6, complains of that portion of the charge wherein the court said:
"Therefore, if you find the defendant was the one who did the killing under either one or the other of the conditions I have stated, that is, either premeditated or in perpetration of a robbery, then he is guilty of murder in the first degree. But the state advances still another proposition, which is very important in the case, and which, of course, you will be called upon to consider."
The respect in which this is alleged to be erroneous is stated in the defendant's brief as follows:
"The state had the duty to prove, beyond a reasonable doubt, not only an intent to take life, but that the killing was both deliberate and premeditated, in order to convict of murder in the first degree. Therefore, the use of the word 'premeditated,' ...