On error to the Salem County Court of Oyer and Terminer.
For the plaintiff in error Marguerite Dolbow, Thomas G. Hilliard and Henry Burt Ware.
For the plaintiff in error Norman Driscoll, James Mercer Davis (John Warren, of counsel).
For the defendant in error, W.A.W. Grier and Robert Peacock.
The opinion of the court was delivered by
LLOYD, J. On the night of August 2d, 1935, while Marguerite Dolbow and Harry Y. Dolbow, her husband, were living together on a farm in Mannington township, Salem county, the husband was killed by a series of blows on the head. That he was murdered seems not to be in dispute. Suspicion pointing to the plaintiffs in error, they were arrested, indicted, tried and convicted of murder in the first degree without recommendation of life imprisonment, subsequently being sentenced to death in accordance with the statute.
It is this conviction and sentence that the present writ of error was issued to review. The review is sought upon assignments of error and by the filing of causes for reversal under section 136 of the Criminal Procedure act of 1898, page 915. These will be dealt with as presented and argued and in the briefs of counsel for the plaintiffs in error.
The first two points argued are that the court erred in refusing to order a bill of particulars and in refusing to grant a severance of the defendants at the trial. These applications were addressed to the discretion of the court and the rulings thereon will not be disturbed, unless the accused have suffered injury thereby. State v. Morris, 98 N.J.L. 621; affirmed, 99 Id. 526; State v. Nixon, 86 Id. 371. A careful examination of the indictment as applied to the facts and the subsequent proofs satisfies us that the defendants suffered no injury by the denial of either application.
The next point is that a series of questions directed to and answered by the defendant Dolbow were improperly received, as also a confession alleged to have been made by her, proof of which was received in evidence. It is urged that it was not adequately shown that these statements and confession were voluntary, and also that the court did not actually pass upon the issue of whether they were voluntary. We think these contentions are without merit. There was abundance of evidence that the confession was voluntary and freely given and the trial judge was justified in receiving the proofs. Such ruling was in itself a disposition of the preliminary issue.
The further point that this proof was improperly received in the presence of the jury is also without merit as the jury itself would be called upon to determine the credit to be accorded to the statements and confession thus admitted by the court. State v. Compo, 108 N.J.L. 499.
Another series of complaints is that there was no evidence to show that the defendant Dolbow was a principal in the commission of the crime. The evidence of the state disclosed that the murder was carefully planned and arranged by the two defendants, and that it had been so planned and arranged for a considerable time prior to the night on which it was
executed. Both of them had endeavored to induce the witness Drummond to carry out this conspiracy for them. It further shows that arrangements were made on the night when the blows were struck to effect the death of Dolbow at that time. It is true that Mrs. Dolbow was in the house, while the blows were struck immediately outside, but she was their aiding and abetting and in legal intendment was a principal in the offense if the state's evidence was believed. State v. Roesel, 62 N.J.L. 216; State v. Carlino, 98 Id. 48.
It is next objected that the statements made by each defendant were received to the prejudice of the other. It is only necessary to say that such statements were received with scrupulous care by the judge and with equal care limited in their effect as applicable only to the one making them.
The objection that the state was permitted to call witnesses in rebuttal on matters which were not strictly rebuttal is also without substance. The order of trial is within the discretion of the court. State v. Napolitano, 95 N.J.L. 546.
Finally it is contended that there was error in following the procedure set forth in chapter 287 of the laws of 1935, page 918, which provides for the drawing of fourteen persons in the empanelling of the jury and this on the ...