On appeal from the Passaic County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
The defendant was convicted of murder in the first degree and sentenced to death. He appeals, claiming error in the manner of the rendition of the verdict, refusal by the court to charge as requested, and the admission of an unsigned confession.
Frank Drewnoski, a bartender at a tavern located in Paterson, New Jersey, on the morning of February 25, 1950, was assaulted and his skull fractured by being struck a number of violent blows with an iron pipe. He died two hours thereafter.
The defendant lived and worked in the neighborhood and was a known patron at the tavern in question. The proprietor conducted a check cashing business for the convenience of his customers and the proof discloses Cleveland had availed himself of this service.
The evidence indicated the defendant, on the morning in question, boarded a bus in downtown Paterson, getting off a short distance from the deceased's tavern. He secured a heavy iron pipe about three feet long and secreted it under his clothing. He drank beer at the bar with several other patrons. One Barnes, who knew the defendant, spoke to him and suggested he could get his old job back at the Asbestos Fibre Company, where Barnes worked.
Cleveland made a telephone call and then entered into a conversation with other men in the tavern. They departed from time to time until, when one left to get a dog Cleveland had expressed an interest in purchasing, the defendant was the sole patron remaining in the tavern.
The State's theory was that the victim, Drewnoski, was seated behind the bar when struck on the head with the iron bar. He was not rendered unconscious but arose and, while attempting to make his way from the room, was struck again a number of times with the same instrument. He fell to the floor unconscious and bleeding.
Mrs. Murawski, the mother of the proprietor of the tavern, heard a commotion and came downstairs from the second floor. She found Cleveland behind the bar taking money from the drawer where it was kept and holding the iron pipe in his right hand. Drewnoski was lying motionless and silent on the floor behind the bar. When Cleveland saw Mrs. Murawski, he struck her several times on the head, fracturing her skull and jaw and rendering her unconscious, and fled.
He went to the home of Ruth Tucker, a friend, and exhibited the stolen money. Later on he went to a tavern across the street from her house and met an acquaintance, Willie Jackson, at whose apartment he stayed until about ten P.M. He discussed the murder with him and requested that Jackson secure for him a copy of a newspaper which, he had heard, carried the story of it. When he left Jackson's apartment, he took a bus to Newark and thence to Portsmouth, Virginia, his former home.
About two weeks after the murder he was apprehended at Deep Creek, Virginia, where the purported confession was taken under circumstances which will be narrated hereafter.
The crime was vicious and despicable and the evidence adduced points strongly to guilt. This does not, however, alter the applicable legal doctrines nor nullify or excuse errors committed in the trial. The right of an accused to a fair trial, with the customary safeguards accorded him by the Constitution and our law, is in no degree impaired or diminished by the strength or compelling character of the evidence against him.
A number of points in the appellant's brief were abandoned on the oral argument and will therefore not be considered. The reasons relied upon will be disposed of in the order of their presentation: first, the verdict of the jury was a nullity; second, there was error in the admission of the unsigned confession; third, error in the refusal to charge as requested.
The chronological sequence of events upon the jury's return, as shown by the record, is as follows:
"The Clerk: Ladies and gentlemen of the jury, have you agreed upon a verdict?
The Clerk: Mr. Foreman, how do you find?
The Foreman: We the jury find the defendant, James Cleveland, guilty of murder in the first degree.
Mr. Kushner: I respectfully request on behalf of the defendant that the jury be polled.
The Court: All right, poll the jury.
The Clerk: Hiller Geneslaw, how do you find?
The Clerk: Selvie U. Dulow, how do you find?
The Clerk: Lina A. Burke, how do you find?
The Clerk: Edward T. Sturm, how do you find?
The Clerk: Elwain P. Hitchcock, how do you find?
The Clerk: Edward H. Heintjes, how do you find?
The Clerk: Ethel F. Baynes, how do you find?
The Clerk: Irving Jacobus Grieves, how do you find?
The Clerk: Eleanor Horka, how do ...