On writ of error to the Camden County Court of Oyer and Terminer.
For the plaintiff in error, John L. Morrissey (E. George Aaron, of counsel).
For the state, Samuel P. Orlando, prosecutor of the Pleas.
The opinion of the court was delivered by
PARKER, J. The plaintiff in error was indicted by the grand jury of Camden county for the murder of Curtis W. Dobbins, and was convicted of murder in the first degree without recommendation of life imprisonment. The case is before us on strict writ of error, and was argued as though here also under section 136 of the Criminal Procedure act. But there is no certificate by the trial court of "the entire proceedings had upon the trial" of the cause, as required by our decisions. The formal return of the record on writ of error does not suffice. See, for example, State v. Clark, 75 N.J.L. 473, citing prior cases; State v. Webber, 77 Id. 580; State v. Timmerari, 96 Id. 442, and State v. Mason, 113 Id. 364, where other cases are cited. The review is therefore limited to matters available on strict writ of error.
For reasons that will presently appear, a conviction of murder in the second degree would be supported by the evidence conceded to have been properly admitted at the trial. But the state pressed for, and the jury returned, a verdict of murder in the first degree, on the theory that the killing was done "in perpetrating or attempting to perpetrate" a robbery. Crimes act, section 107; Comp. Stat. 1910, p. 1780. Much of the argument is devoted to the evidence on this point, and the propriety of its admission. Weight of evidence is not argued, and indeed is not available on strict writ of error.
The state's theory of the homicide was that defendant, armed with his own revolver, rang the doorbell of Dobbins' house at about ten-forty-five P.M. of August 11th, 1936; that Dobbins went to the door and opened it, to confront defendant standing with an aimed revolver, and saying "stick 'em up;" that Dobbins attempted to escape or dodge, and defendant shot three times, one bullet taking effect in the body of Dobbins, who was nevertheless able before collapsing to telephone to the police, who hastened to the scene, arriving in about five minutes after the shooting, and were told by Dobbins what had happened; that Dobbins was taken to the hospital and died early in the morning of August 17th. At the hospital he made a statement a few hours before his death to the attending physician, as to the circumstances of the shooting. This statement was admitted by the court over objection and exception, as a dying declaration; and statements of deceased to the police at the house after the shooting and on the way to the hospital were similarly admitted, on the theory of res gestae. Both rulings are claimed to be erroneous.
The fact of the shooting, and that it was by the defendant, was adequately, though circumstantially, proved without [118 NJL Page 595] necessity of resort to any statement by the deceased by way of confession. It appeared that defendant, who lived in Camden and worked in Philadelphia, had an automobile, the license plates of which were changed after the shooting; that prior to the shooting he had been heard to say that he had pulled off small jobs and they had not caught him and there was a certain place in Haddonfield that he was going to pull; that on another occasion one of his young woman friends had expressed in his presence a wish for a fur coat, and that defendant had said in substance that it was easy, a couple of steel slugs would do it, all that was needed was to go into a store and tell them to "stick them up," and so on; that he was out with the car that evening in New Jersey, ostensibly "selling sheets" for his employer; that he had a woman with him, who testified at the trial; that they stopped at various drinking places and at a brickyard, and finally in a side road, near the house where Dobbins was shot, identified by this woman witness from the picture in the newspaper and again on the ground after the murder; that she fell asleep and was wakened by a noise like a backfire and the slamming of a door (at another place the witness said "or" instead of "and"); that defendant was in the car alongside her and she told him to get started as it was late; that they went to a diner, where a police officer looked at them queerly; then over the ferry to Philadelphia. The revolver was found in a stove at defendant's lodgings, and when found was empty. Defendant admitted to the prosecutor of the Pleas that the revolver was his, that he must have fired it but remembered nothing about doing so. Expert testimony indicated that the bullet that wounded deceased, and the two other bullets found in his house, were fired from that revolver. The jury were therefore fully justified in finding that the defendant did the killing; and such killing was presumptively murder (State v. Silverio, 79 N.J.L. 482); but without more, murder in the second degree. Brown v. State, 62 Id. 666. The trial court so charged. To support a conviction of murder in the first degree, it was incumbent on the state to show by legal evidence, either that the killing was willful, deliberate
and premeditated, which there was no attempt to show, except incidentally as above; or that it occurred in the perpetration of, or attempt to perpetrate, one or more of the other crimes mentioned in section 107 of the Crimes act, supra; in this case, robbery. See State v. Hauptmann, 115 N.J.L. 412. It was to this latter that the "res gestae" and "dying declaration" testimony was pertinent; and it is to this testimony that the principal argument is directed.
Taking up the matter of the "dying declaration" first: Dr. Davis, the attending physician at the hospital, testified that at the time of the statement, the condition of the patient was "very poor." "Q. Did he say anything which would indicate knowledge on his part? A. Yes, we had given him a transfusion and he said, 'Stan, I don't think I am going to make it,' he said, 'I feel myself getting weaker,' and of course, we didn't tell him that he was, but we told him that he was all right, we were going to give him another transfusion Monday, just so he wouldn't think that he was going to die, although he did tell us that he thought he would die. Q. When did he tell you that, before or after the transfusion? A. After. Q. About that time did you have any conversation with him in which he stated what had happened?" (Objected to as not within the rule; the court opined that it was, but permitted cross-examination, which was as follows): "By Mr. Morrissey: Q. You say he talked to you concerning his condition prior to making any statement, is that true? A. Yes. Q. What did he say concerning his own physical condition? A. He said, 'I feel myself getting weaker and I don't think I am going to make it.' Q. Did he say that he knew he was going to die? A. He felt that he was going to die. Q. He wasn't certain of it, was he? A. Yes, he seemed to be pretty sure. Q. Did you try to cheer him up about it? A. Yes, it didn't seem to work. Q. What did you say to him? A. I said, 'oh, don't worry about that, Curt; you always have a few rough days before you get well,' but it didn't console him much. Q. What answer did he give you about that? A. He said, 'well, I still think I am getting weaker.' Q. He said he thought he was getting weaker? A. Yes. Q. After
that did you again talk to him about his condition before he made this statement? A. After what? Q. After he had said he thought he was getting weaker? A. Yes.
"By the court: Q. How long after that was it before he made the statement, doctor? A. How long after he told me that, judge? Q. Yes, was it a matter of minutes or hours? A. Oh, no, it was all within two or three minutes. Q. Then he died how long after that time? A. He didn't die until the next morning.
"By Mr. Morrissey: Q. And he told you that he thought he was getting weaker? A. Yes. Q. Mr. Morrissey: Is that the idea? Now, if your honor please, I repeat my objection. I think the law is very clear that in dying declarations the party making the statement must be certain that they are about to die, and the fact that they think in their minds they are about to die has no influence.
"The court: The test is all hope of life. I think the elements are present, Mr. Morrissey, it seems to me your cross-examination merely confirmed what the doctor had already stated to be the fact.
"Mr. Morrissey: I think in cross-examination -- the doctor said on direct examination that Mr. Dobbins thought he was getting weaker, which certainly is not a declaration of his intention of abandoning all hope.
"The court: Your objection is overruled. I will allow the testimony to go in as the dying ...