On error to the Essex County Court of Oyer and Terminer.
For the defendant in error, William A. Wachenfeld, prosecutor of the pleas.
For the plaintiff in error, Gerald T. Foley.
The opinion of the court was delivered by
CASE, J. Zupkosky was found guilty in the Essex Oyer of murder in the first degree without recommendation. The case comes up on specifications for reversal as well as on assignments of error. The indictment was in the usual form and charged that defendant "did willfully, feloniously and of his malice aforethought kill and murder Alexander Sawczuk contrary to the form of the statute * * *." It is conceded that the defendant and his companion, Mike Sommers, had planned to rob a liquor store in Newark and were both on the premises in the act of committing the robbery when Sommers was killed by one of the clerks, whereupon defendant, in trying to escape, was felled while still in the store premises, and that in the ensuing scuffle defendant shot and killed, with a revolver which he had brought with him for the purposes of the robbery, Alexander Sawczuk. Zupkosky set up in defense, first, that he had abandoned the
robbery and was in retreat, wherefore he could not, as he contended, be convicted under the provisions of R.S. 2:138-1 (formerly 2 Comp. Stat. 1779, pl. 106), infra, and, second, that at the time he fired the fatal shot he was incapable of forming an intent and therefore could not, independent of that statute, be guilty of either first or second degree murder.
Defendant had a long record of crimes and convictions. On January 24th, 1941, he was on parole. Late that night or early the following morning he committed the act which resulted in the present conviction. According to his story told on the witness stand he entered the store with two drawn revolvers held with a menacing gesture; he compelled one of the clerks to open the cash registers and was in the act of gathering up the money when he heard a shot from the back room where Sommers had corralled some of the inmates of the store; at that point defendant dropped the money and shouted, "Come on, Mike. I am finished. Let's go," whereupon, and with the purpose of "getting out," he made for the front door. His testimony: "As I was running toward the front door the two storekeepers ran after me and they caught me near the doorway. I slipped. I remember slipping and then the scuffle started after I slipped. When I slipped I tried to get up and then somebody -- I do not know who hit me in the back and I went forward. I do not remember exactly what I hit. I hit some part of the front part of the store. Then we started wrestling around and I was trying to do my best to get out of the store." On the witness stand defendant further testified that while he was trying to get away something hit him on the head and that after that he knew nothing until he was lying in the snow in front of the store and someone was lifting him up; but in his written statement, admitted in evidence, he said:
"As I was running towards the front door the two storekeepers ran after me and they caught me near the doorway. We tussled and they hit me over the head with bottles and I was trying to get away from them. I was trying to break away and while the tussling was still going on I pulled the triggers of the guns and a shot was fired from one of the guns which was the 32 calibre revolver. The two storekeepers were right close to me all the time."
The first point presented by the defendant on his brief is that the court erred in its definitions of abandonment of, or desistance from, an attempted robbery and erroneously restricted the scope of the determination by the jury of the issue of whether or not the attempted robbery had been terminated before the killing. It is not practicable to set out here all of the language of the court to which the defendant objects or all of the requests that the court refused to charge in this connection. The fulcrum of the argument is that the court made plain to the jury that the mere dropping of the money by the defendant and the shouting out that he was through and the attempting to escape from the grounds did not constitute an abandonment of the robbery without some commensurate change of heart on the part of the defendant; that the mere fact that the defendant was in the effort to escape when he was interfered with and when he shot the fatal bullet was not enough to constitute an abandonment unless the defendant had, in addition to his mental processes, evinced a reasonable appearance of abandonment as, for instance, throwing up hands and submitting to arrest; that every planned robbery included an escape and that an effort to escape did not of itself constitute an abandonment of the attempted crime. Chancellor Walker, speaking for this court in State v. Gimbel, 107 N.J.L. 235, said (at p. 240):
"In the Turco case we held that when, incident to a robbery, one of the robbers kills a third party after the goods have been taken out of the possession of the owner (or his agents), while the robbery is complete, so as to render the perpetrators liable to conviction for it, yet the killing being done in an attempt to conceal the crime, protect the robbers in the possession of the loot and facilitate their flight, is so closely connected with the robbery as to be part of the res gestoe thereof, which may be an emanation of the act of robbery, and, although an act committed after the fact of robbery it still constitutes part of the ...