On writ of error to the Mercer County Court of Oyer and Terminer.
For the plaintiff in error, Andrew M. Cella, John J. Boscarell and Anthony Salamandra.
For the defendant in error, Andrew J. Duch (Leo J. Rogers, of counsel).
The opinion of the court was delivered by
LLOYD, J. The plaintiff in error was convicted of murder in the first degree without recommendation of life imprisonment and sentenced to death. He has a writ of error and argues in his brief specifications of causes for reversal under the one hundred and thirty-sixth section of the Procedure act. Few of these specifications bring anything adequately before the court, but in view of the importance of the case we have examined the substantial contentions with the following result:
The first point argued is that the judge erred in not impaneling fourteen jurors as authorized by chapter 287 of the laws of 1935. The validity of this legislation was passed upon affirmatively by this court in the case of State v. Dolbow, 117 N.J.L. 560. By its very terms the occasion for invoking the provisions of the act is placed in the discretion of the trial judge. That the judge failed to invoke the permissive authority conferred by the act but adopted the time honored jury of twelve without the calling of additional jurors suggests to us no taint of illegality.
Other specifications are that the evidence was insufficient to sustain a verdict of murder in the first degree; that there was error in the denial of a motion to the same effect; and that the verdict was against the weight of the evidence. These grounds we think are not well founded. The plaintiff in error and the deceased had been living together as husband and wife and the latter disappeared on June 12th, 1936. As a result of reports coming to the police authorities an investigation was made and on August 4th Heathcoat was taken into custody and questioned. After two days he was released. On September 14th he was again taken into custody, and after questioning admitted having killed his wife
and showed the police where he had buried her body under a shed attached to their home. His story as told in the statement and subsequently on the witness stand was to the effect that he threw a hammer at a man called Marty who was threatening to assault him and endanger his life, and that instead of the hammer striking the man it struck and killed the woman.
The state proceeded to discredit this statement and to establish the criminality of the act by showing that the hammer was used close to the woman's head; that he had made threats of intention to get rid of her as soon as he could get what money she had; proof of his infatuation for a woman named Miller who through his sexual relations had become pregnant. It also appeared that he was forging her name to pension checks and collecting the proceeds after the killing; that a week after her death he disposed of all of her furniture and other belongings and established the Miller woman and her father in his home, representing the former as his wife. There was thus presented the motive of getting rid of one woman that he might with freedom carry on his connubial and sexual relations with another; the expressed purpose to kill after his wife's money was gone; the immediate appropriation of these assets and their hurried disposal. These together with the discrediting of his own story and the secret hiding of the body, we think, amply demonstrated a killing designed and premeditated, and a killing that was willfully and deliberately executed. There was no error therefor in refusing the motions for a direction and the verdict in our view was not against the weight of the evidence.
The next complaint is of the admission of photographs of the deceased and of the surroundings, including the rooms involved in the tragedy. While taken approximately three months after the crime was committed, the conditions were those created by the defendant himself and there is nothing to suggest a change in the body or the premises except the ravages of time on either. The admissibility of photographs under such circumstances is too well fortified to admit of doubt. State v. Fine, 110 N.J.L. 67.
The specification next sought to be availed of as to the admission of the evidence of one Seckinger concerning the relations between Heathcoat and Mary Miller presents no legal ruling by the court; nor do we find ...