On appeal from the Essex County Court, Law Division -- criminal.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld and Burling. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J. Heher, J. (dissenting).
This is defendants' appeal, by virtue of the Constitution, Art. VI, § V, par. 1(c) and Rule 1:2-1(c), from a judgment entered in the Essex County Court following their conviction by a jury of murder in the first degree without recommendation. The Court, as it was required to do, imposed the death sentence.
The jury, from the evidence adduced, could have found the following facts. Defendants Jellison and Bunk, together with one Yanuzzi who was jointly indicted with these defendants but who had not been apprehended at the time of trial, met on the afternoon of August 7, 1948, at a tavern and proceeded to another tavern where they picked up Smith. All four spent the greater part of the afternoon and evening together visiting various taverns and places in Newark "looking them over" with a view of selecting the most likely place at which to stage a holdup. After midnight they decided to
attempt the holdup of the "Penn Tavern" because few people were there at the time.
Jellison drove the car and parked it a short distance from the tavern with its motor running. The defendants then discussed the plans for executing the robbery and the part each was to take in it. Jellison, according to the plan agreed upon, stayed in the car for the purpose of making the getaway. He owned the guns used in the holdup, which were kept in his car for the purpose of committing robberies.
Smith, Bunk and Yanuzzi, following the plan, entered the tavern. At a signal they drew their guns and Smith went to the shuffleboard room which was separated from the bar room by a partition. Here Peter Newcomb was playing shuffleboard with his brother Frederick. Smith announced it as a holdup, whereupon a scuffle ensued between him and Peter Newcomb during which the latter was shot and killed by a bullet from the 32-caliber gun in the hands of Smith. In the scuffle Smith also was shot and his skull fractured. After the shots in the shuffleboard room eight or ten other shots were fired in the tavern. Following the shooting Bunk and Yanuzzi ran from the tavern to Jellison's parked car and escaped. Smith was taken to the Newark City Hospital, Bunk was arrested in the early morning of August 14th in Newark and Jellison was arrested in the early morning of August 18th in Haverhill, Mass., to which city he had fled.
It is asserted it was error on the part of the trial court to have denied a motion for judgment of acquittal at the close of the State's case because the indictment did not comply with Rule 2:4-11. The indictment was in the form prescribed by the statute R.S. 2:188-11. It was held in Graves v. State, 45 N.J.L. 347, 357 (E. & A. 1883), that an indictment for murder is sufficient if it charges the defendant did wilfully, feloniously and with malice aforethought kill and murder the deceased. Where several defendants are charged with murder as actual participants in a robbery during which the killing was perpetrated, an indictment charging murder in the language of the statute is sufficient, without
charging the defendants as principals or as accessories, and without setting forth the robbery as part of the crime. State v. Juliano, 103 N.J.L. 663 (E. & A. 1927).
Rule 2:4-11 provides "The indictment or accusation shall be a written statement of the essential facts constituting the offense charged" and is merely directory. The defendants could not possibly have been misled or prejudiced in maintaining their defenses by the form of the indictment. If they had not considered it specific enough to properly prepare their defenses, bills of particulars could have been applied for. Rule 2:4-14.
Each defendant claims error because the trial court, when jurors were being examined on their voir dire, made an alleged erroneous statement of the law: that if deceased was killed by a third person, not acting in concert or having any connections with defendants, nevertheless they would be guilty of murder in the first degree.
We are not called upon to determine this legal proposition but to consider, assuming that the remarks of the trial judge were an erroneous exposition of the law, whether or not the statement constituted reversible error.
Defendants argue that the remarks of the trial judge, stated numerous times in the presence of the jury and the panel, were so gravely prejudicial and so completely infected the atmosphere of the whole trial that they could not be cured by a proper charge.
When objection was made to the complained of remarks the Court said, "I am making no ruling on that point now," and "The jury, when we finally get a jury, will decide the case, as far as the law is concerned, as I give the law to them," and "I will allow the State to put the question in the form of its contention. I do not feel called upon to instruct the jury now what the law is. I will do it at the proper time."
Even if the Court's view of the law as it was expressed in the examination of jurors on their voir dire was erroneous it was cured by the express withdrawal of those remarks in its charge to the jury, State v. Parks, 96 N.J.L. 360 (Sup.
Ct. 1921); State v. Vliet, 120 N.J.L. 23 (Sup. Ct. 1938); where it said:
"During the drawing of this jury and while some of you were in the box and while some others of you were in the court room a legal argument between counsel and the Court took place. At that time I expressed the view if during the course of this attempted robbery a third person, such as a patron of the tavern, drew a gun or used a gun to aid in repulsing the robbers and in doing so accidentally killed another person, the persons attempting the robbery would be guilty of murder in the first degree for that killing.
"Since that time my further study of this statute and of the law has convinced me that the view I then expressed was an erroneous view. Consequently, in order to avoid any possible misunderstanding on the subject, I expressly withdraw that assertion and instruct those of you who heard it to disregard it.
"If the killing of Peter Newcomb came about through the firing of a shot by a third person in resisting the attempt at robbery and that third person had no connection with these defendants, then under the statute they are not guilty under the indictment and must be acquitted."
We cannot agree that the minds of the jurors had become so saturated with the alleged erroneous legal rule that it could not be eradicated therefrom under the circumstances exhibited here, or that by the remarks there was any prejudice to the defendants in maintaining their defenses on the merits.
Smith also asserts there was error committed in the impanelling of the jury in that in the voir dire examinations the State was permitted to ask questions to elicit information as to whether the prospective juror would return a first degree murder verdict if the facts showed the killing was done in attempting to commit robbery, and whether the juror would be dissuaded in bringing in such a verdict if he knew the penalty would be death. The contention is made such questions excluded the fact the jury might recommend life imprisonment.
A wide latitude is allowed counsel in examining on the voir dire and the State was well within its rights. It had a right to ask for the death penalty and to inquire as to a prospective juror's attitude respecting the imposition of that penalty; to contend that upon the evidence it expected to produce that
the crime was of such atrocity the jurors' verdict should be without recommendation. State v. Juliano, supra; State v. Favorito, 115 N.J.L. 197 ...