On error to the Essex County Court of Oyer and Terminer.
For the plaintiff in error Cole, David Green and Robert Carey, Jr.
For the plaintiff in error Hicks, J. Edward Bennett and A. Warren Littman.
For the defendant in error, Duane E. Minard, Jr., Prosecutor of the Pleas, James R. Giuliano and C. William Caruso, Assistant Prosecutors of the Pleas.
The opinion of the court was delivered by
OLIPHANT, CHANCELLOR. On the trial of an indictment for murder in the Essex County Court of Oyer and Terminer, the plaintiffs in error were convicted of murder in the first degree, without recommendation, and were sentenced to death pursuant to the statute, R.S. 2:138-1 and 2:138-4. Another defendant Harris was also convicted of murder in the first degree with a recommendation, but he has not appealed.
The indictment, in the usual statutory form, charged the plaintiffs in error with the killing of one Rudominer and the state offered proof that the killing occurred during the perpetration of a robbery or attempted robbery.
The convictions and judgments below are brought here for review on writs of error, bills of exceptions, and on the certification of the entire record of the trial proceedings, R.S. 2:195-1, 16. The judgments are also before the court on appeal pursuant to Pamph. L. 1946, ch. 187; R.S. 2:195A-1, et seq.
The decedent Rudominer died of injuries inflicted by one of three men who apparently came into his drug store at about 8:45 P.M. on September 12th, 1946. There were eye witnesses to some of the events that took place.
A woman said she was passing the store when she saw a negro behind the counter in the drug store. Sensing something wrong she called to three negroes, and one of them came over and started with her into the store. She and this man said only two men rushed out of the store at that moment and the other witnesses ran after them but they escaped.
Inside the drug store they found Rudominer bleeding and unconscious on the floor. They called the police. These witnesses were unable to identify the plaintiffs in error or to give an adequate description of the murderers, except to describe the Eisenhower jacket worn by one and a red and black checked shirt worn by the other.
Rudominer was unable to answer any questions for the police and was removed to the hospital where he died the next day without regaining full consciousness. The autopsy established the cause of death as a fractured skull and a cerebral hemorrhage together with various contusions and linear fractures of the temporal regions. In the opinion of the doctor the injuries resulted from being struck with a blunt instrument or object.
The police found several drawers in back of the counter pulled out, the cigarette case disturbed with cigarettes all around the floor. They also found about $20 around the store and about $900 in the safe which was in the rear.
There is little or no significant proof in the record pointing to the guilt of these particular defendants except their confessions, but there is proof in the record corroborating certain facts in the confessions of the plaintiffs in error.
On December 7th, 1946, Harris was apprehended with a stolen car. As the result of the questioning of him Cole and Hicks were picked up by the police early the next day. Harris and Hicks gave statements to the police on December 9th relative to certain holdups. Cole gave written statements to the police on December 10th as to other robberies. None of these statements related to the Rudominer killing.
It appears that while Hicks on December 9th admitted taking part in the Rudominer holdup, the first statement with respect thereto was taken from Harris between 1:45 A.M. and 4:00 A.M., December 10th. Similar statements were obtained from Hicks and Cole on the afternoon of that day. That same evening in the presence of the Prosecutor and his assistants, under questioning by Chief Sebold of the Newark police department, the prisoners orally repeated substantially the facts already given in their prior confessions. Cole ...