On error to Gloucester County Court of Oyer and Terminer.
For the plaintiffs in error, Harry H. Weinberger (Samuel L. Rothbard, on the brief).
For the state, Lynwood Lord, prosecutor of the Pleas.
The opinion of the court was delivered by
PARKER, J. The plaintiffs in error, together with one Anna Brown, sister of William Albert Brown, were jointly indicted for the murder of one William J. Horner on June 16th, 1937. All were jointly tried, and convicted of murder in the first degree; Anna Brown with recommendation of life imprisonment, the others without recommendation. Anna Brown has not joined in this writ of error.
The story of the crime, as the jury were entitled to find on the evidence, is that on the evening of June 16th the three had been drinking at a saloon, and formed the plan to go to Horner's house and rob him. Horner lived alone, was sixty-five years old, and quite deaf. It was then ten o'clock and after dark, according to Brown's testimony. The court in charging the jury mentioned a later hour, but the exact time is immaterial, if it was night, as all the testimony indicates. They went to the kitchen door, which was locked, and there was an outside screen door which was also secured in some way. Burrell broke open the screen door, and was turning the knob of the main door trying to open it when Horner, apparently roused by the noise, came and opened it, and was immediately attacked by all three, they at the same time demanding his money, and was beaten into insensibility and left unconscious on the floor, where he was found the next
day. He died of the injuries a day or two later. On the evidence, the jury were amply justified in finding that murder was committed in the perpetration of a burglary, and in the perpetration of a robbery; and that all three defendants were principals. The case being here both on strict writ of error and also on a certificate of the entire record pursuant to section 136 of the Criminal Procedure act, plaintiffs in error specify as a cause for reversal that the verdict was against the weight of evidence. This may as well be disposed of at once by saying that the evidence of guilt and the evidence to support a first degree verdict was overwhelming, and that this specification is devoid of any substance whatever.
We take up the other points made for reversal.
The first is that there were two inconsistent instructions on reasonable doubt, and that one was erroneous to the prejudice of the defendants.
The first, which is claimed to be wrong, was:
"Reasonable doubt would exist when the judgment of the jury, after a careful review of all the testimony and the evidence, it finds itself unconvinced of the guilt of the prisoners. If such doubt exists, you are charged to resolve it in favor of the prisoners at the bar."
This, as stated in State v. Leo, 80 N.J.L. 21 (at pp. 24, 25), is the language used by Chief Justice (afterwards Chancellor) Magie in Wilson v. State, 60 Id. (at pp. 171, 172), and expressly approved in the Leo case.
The second, admittedly correct, was taken from State v. Linker, 94 N.J.L. 411, and is as follows:
"It is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
Both the quoted instructions were correct, and we see no inconsistency of either with the other.
The second point rests specifically on assignments and specifications numbers 45 and 46 which read as follows:
"45. Because the court committed prejudicial and harmful error in placing the plaintiffs-in-error on trial for a crime for which they were not indicted, on the ground that it violated Article 1, Section 9 of the New Jersey Constitution.
"46. Because the court committed prejudicial and harmful error in placing the plaintiffs-in-error on trial for a crime for which they were not indicted, on the ground that it violates Article 14, Section 1, and Article 5, of the United States Constitution."
It will be observed at once that no judicial ruling of the trial court is adequately presented by either of these paragraphs, but the argument under them is based upon a sentence in the charge which is reproduced in ...