On error to the Essex County Court of Oyer and Terminer.
For the plaintiff in error, Gerald T. Foley and Joseph A. Hayden.
For the defendant in error, Duane E. Minard, Prosecutor of the Pleas, Richard J. Congleton and C. William Caruso, Assistant Prosecutors of the Pleas.
The opinion of the court was delivered by
OLIPHANT, CHANCELLOR. The plaintiff in error, James Brooks, hereinafter called the defendant, was indicted in the Court of Oyer and Terminer of Essex County for the murder of Mortimer Bateman. He was convicted of murder in the first degree, and no recommendation of life imprisonment being made by the jury, he was sentenced to death. He now brings up for review that judgment under the provisions of both R.S. 2:195-A-1 and R.S. 2:195-16.
Defendant and one Smart, who was a fellow employee of Bateman, conceived and carried into execution a plan to hold up a truck driven by Bateman and rob him of moneys which he was on his way to a bank to deposit for his employer. Bateman was shot by a gun in the hands of the defendant. Smart, after his arrest, committed suicide.
The indictment charged the murder was committed in the City of Newark, County of Essex.
The defendant did not take the witness stand and no proof was offered that he did not participate in the armed robbery in the course of which Bateman was shot and killed. The state's case consisted of proof of the corpus delicti by the chief medical examiner of Essex County, a confession of the defendant, and the testimony of three eye witnesses of the early stage of the hold-up.
At the trial the evidence showed that a witness Bomwell was standing at the corner of Wickliffe Street and Thirteenth Avenue, in Newark, when he heard a sound like the backfire of an automobile and what sounded like men fighting inside of a truck. His observation disclosed a parked truck in the center of a street without a driver. He then saw a man, with gloves on, appear from inside the truck and take over the wheel. The truck started, and the witness heard one or two shots fired and saw "a puff of smoke as each bullet went off." Two other witnesses heard at least three reports which they at the time thought were backfires from automobiles.
There was ballistic proof that one of the bullets taken from the body of Bateman had been fired from a revolver owned by and found in defendant's home. The medical examiner testified there were three bullet wounds of which the one in the abdomen had proven fatal.
The defendant, in his confession, gave a full account of what had happened and these are the important details. Smart stopped the truck driven by Bateman, who let him in, and then the defendant jumped in. After they rode a short distance defendant pulled the gun and said "This is a hold-up -- I am not kidding." It was part of the plan to pretend Brooks did not know Smart. Then Bateman grabbed the gun; it went off, and Bateman and defendant fell back in the truck. Two more shots were fired quickly. They then beat Bateman and Smart took the gun and fired two shots into decedent at close range. In ...