On appeal from Gloucester County Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Burling, J.
This is an appeal, pursuant to Article 6, section 5, paragraph 1(c) of the Constitution and Rule 1:2-1(c) of this court, in a capital cause. Appellant was convicted on January 13, 1949, of the first degree murder of Alberta Sharp on September 5, 1948, in the Gloucester County Court. The jury did not recommend life imprisonment and in accordance with the statute, R.S. 2:138-4, the appellant was sentenced to death. Execution of this sentence was stayed pending the disposition of this appeal. Rule 1:2-16(a).
The appellant raised four questions in his brief. At the oral argument, however, the third and fourth of these which dealt with the formalities of the sentence and with the contention that the verdict was against the weight of the evidence, were abandoned. Accordingly there remains for our consideration only the first two questions which pertain to the
denial of appellant's motions for a change of venue and trial by a foreign jury.
On the morning of September 7, 1948, Alberta Sharp, a 16 year old resident of the village of Jefferson, Gloucester County, was found dead in a gravel pit in the vicinity of Jackson Road and approximately a mile and one-half from State Highway 45 in the Township of Mantua, Gloucester County. Subsequent examination of her remains disclosed that she had died of a gunshot wound in the head, a .22 calibre bullet having pierced the brain and lodged on the opposite side of the head from the point of entry.
The deceased girl had left the store of Eva Berry where she was employed, on the Clarksboro Road in Jefferson at about 10:30 P.M. on the night of September 5, 1948; shortly thereafter she was seen walking along State Highway 45 in the direction of her home. Appellant was apprehended in Philadelphia, Pennsylvania, as a result of his automobile having been seen while parked in the vicinity of the crime at the time of the event. A search was made of his automobile and under the dashboard was found a .22 calibre gun, which ballistic tests proved to be the murder weapon. After interrogation, Collins admitted the homicide in a confession that the killing was the result of a suicide pact in which he had at the last minute reneged. He did not subsequently repudiate it or attempt to challenge its voluntary character. It is unnecessary to relate further details of the crime.
The State proceeded upon the theory that there had been either a murder in the perpetration of a robbery or a willful, deliberate and premeditated murder, both of which are classified as murder in the first degree by R.S. 2:138-2. The evidence supported either theory. The appellant did not testify and in view of the other evidence presented the jury had the right to reject his motive and even if his motive was accepted by the jury it was nevertheless first degree murder.
On December 15, 1948, the appellant, after due notice to the prosecutor, applied to the Assignment Judge of Gloucester County for a change of venue and for a foreign jury. Both motions were made in conformity with Rule 2:6-2. The
applications were accompanied by affidavits from citizens of six different localities situate in Gloucester County stating their belief that a fair and impartial trial could not be had therein. The motion for a foreign jury was also accompanied by clippings from newspaper circulating throughout Gloucester County. Both motions were denied by the Assignment Judge and it is the denials of these motions that are urged as error.
Both of the motions were made pursuant to Rule 2:6-2. They are identical in nature save as to the relief desired and are both predicated upon the alleged impossibility of obtaining a fair and impartial trial from a panel of Gloucester County jurors. The reason assigned in support of each motion was the purported public ill-feeling towards the appellant because of the unfavorable newspaper publicity attending the ...