On writ of error to the Salem County Court of Oyer and Terminer.
For the plaintiff in error, H. Norris Mangan.
For the defendant in error, John F. Bruther.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The plaintiff in error, a negro, twenty-seven years of age, was convicted of murder in the first degree, without recommendation of life imprisonment, under an indictment in short statutory form charging him with the murder of Beulah Kessler, a white woman eighty-three years of age. It was alleged that the crime was committed on July 24th, 1941, at Woodstown in Salem County. Pursuant to such verdict and the statute, sentence of death has been imposed.
The decedent was last seen alive at her home on July 24th, 1941, between 5:00 and 7:00 P.M. Her dead body was found there at 1:10 P.M., July 25th, with her throat cut and with other evidence of violence, including those of rape or
attempted rape. The defendant admitted by his testimony that he was at her home sometime on July 24th before sundown, detailed his transactions and conversation with decedent, but denied that he raped or attempted to rape her or that he killed her, except that there may be said to be a conflict as to this between his testimony and a confession introduced by the state.
Such a brief narration, from all the details of a most repulsive and ghastly crime, is sufficient because although the judgment before us for review is on a writ of error under R.S. 2:195-1, and upon the entire record under R.S. 2:195-16, we are not asked to pass upon the weight of the evidence.
There are two assignments of error and six specifications for reversal.
The first two of each are identical and challenge the admission in evidence of Exhibit S -27, being a confession or statement by the plaintiff in error, upon the ground that it was not voluntary; that its admission was error and that manifest wrong and injury resulted.
This exhibit, over objection, was admitted in evidence and read to the jury upon the direct examination of the sheriff, in whose custody the plaintiff in error was at the time it was made. Thereafter the inquiry as to its voluntariness was continued to the end of the trial and finally submitted to the jury with the instruction that "it is within your province, despite the fact that the court admitted the statement into evidence, for you to say whether or not the statement was voluntary and if it was not, to your way of thinking, you can discard it altogether."
It is apparent that in the cause under consideration this preliminary question of admissibility was not approached and conducted in a proper manner.
An assignment of error under a writ issued under R.S. 2:195-1, brings before this court only the inquiry whether there was any testimony supporting the admission, but by proper specifications for reversal under R.S. 2:195-16 the review goes to the point of ascertaining "whether the ...