On error to the Camden County Court of Oyer and Terminer.
For the plaintiff in error, Rocco Palese and Carl Kisselman.
For the State, Samuel P. Orlando.
The opinion of the court was delivered by
HEHER, J. The plaintiff in error was convicted of murder in the first degree and sentenced to death for the killing of one Agnes McBurney on April 23d, 1941, at her farm premises on Buffalo Road, in the Township of Gloucester, in the County of Camden. He sued out this writ of error, and caused the entire record of the proceedings had upon the trial to be returned with the bill of exceptions pursuant to R.S. 1937, 2:195-16.
The first insistence is that the verdict was against the weight of the evidence.
It is said that "the theory upon which the case was tried" was that plaintiff in error was guilty of murder in the perpetration or attempted perpetration of a robbery of the deceased, and that the evidence does not "reasonably give rise to the inference" that, "at the time of the killing," he "had
an intent to commit robbery" as defined by R.S. 1937, 2:166-1. But there was such evidence.
True it is that the accused disavowed such felonious intent. In a confession made a few hours after the homicide, he declared that, in the course of a journey along the roadside, he stopped at the home of the deceased (with whom he became acquainted some six years before while he and her husband were in the same employment), for the purpose merely of procuring "a drink of water;" that he was markedly under the influence of liquor, and that the fatal altercation occurred after the deceased had upbraided him for calling in that condition and had ordered him to leave the premises. She then "shoved" and "hit" him, so he said, and he "fell against the truck" at rest in the yard nearby, and thereupon he seized a baseball bat standing against the house and "struck her * * * in the head," whereupon "she fell to the ground," and "then" he "just lost" his "nerve and struck her again." After thus felling her, he delivered "several more" blows to the head with the weapon to "make sure that she was dead, so she would not tell on" him. On the witness stand he modified this somewhat: He maintained that when he sought to repel an attack by the deceased's dog, "she reached out and got a bat, and" he "grabbed the bat quick out of her hand and * * * struck her * * * about two or three times." Only then, he affirmed, did he determine to search the house for money. And the argument is made that, although the accused ransacked the house and carried away a radio, which he pawned in Philadelphia later in the day, there is in these circumstances no evidence of an "intent to commit robbery prior to the striking of the fatal blow or blows," since it is reasonably inferable that "the plan or design to take the radio was not conceived until after the striking" of the lethal blows, and therefore the finding of a homicide done in the perpetration of a robbery is purely speculative.
But the version thus given by the accused was plainly not conclusive. It was within the province of the jury to reject this avouchment if the circumstances demonstrated beyond a reasonable doubt that the killing was done in the perpetration
or attempted perpetration of a robbery. There was evidence reasonably tending in that direction. Concededly, the accused made a thorough search of the house in a quest for money "to buy more liquor." Finding none, he took the radio and proceeded without delay to convert it into money. Although he testified that he "was crazy with liquor and didn't know what" he "had done," the means subsequently taken to conceal the radio, and his immediate trip to Philadelphia to pawn it, are significant to full awareness of his actions and a preconceived design to rob as well. He fled the deceased's premises along a little-used back road and through a wooded section, thus avoiding the abutting highway. He acknowledged that this was a measure taken to avoid discovery with the stolen chattel. At a point near his home, he removed and discarded rubbers he had worn, fearing that "somebody might track" him. He borrowed 25 cents from a neighbor for bus fare to Philadelphia and, concealing the radio in a basket, he proceeded to that city, where he pledged it for a loan of $3.50 under a fictitious name and place of residence. His circumstantial account of his movements before and after the homicide bespeaks full consciousness of his actions. His memory failed him only as to ...