On appeal from the Superior Court, Law Division, Mercer County -- Criminal.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
[10 NJ Page 538] Six men in 1948 were indicted and convicted of murder in the first degree. They were sentenced to death. It was a long and difficult trial lasting 44 days.
On appeal, this court reversed the judgment rendered against them because of errors committed in the trial. State v. Cooper, 2 N.J. 540 (1949).
On the retrial ordered, four of the defendants were acquitted by the jury and two, Cooper and English, were convicted of murder in the first degree and sentenced to life imprisonment in accordance with the jury's recommendation.
In their appeal, presently before us, they seek to set aside the judgment, contending: (1) a verdict should have been directed in their favor as there was no legal evidence from which an inference of guilt could be drawn, nor was there proof of robbery or attempted robbery or of conspiracy; (2) the admission of the defendants' confessions violated their constitutional rights; (3) the verdict was against the weight of the evidence; and there was error (4) in admitting into evidence unsigned, unacknowledged notes taken by a police officer from a conversation with one of the defendants; (5) in the prosecutor's attempts to attack the credibility of two witnesses by showing prior convictions of crime; (6) in admitting into evidence a soda bottle and a bottleneck, S-40 and S-44; (7) in admitting into evidence a coat, bottle and sock found by George English, and a photograph; (8) in neutralizing the testimony of Dr. Sullivan on the ground of surprise; (9) in rejecting the defense testimony relating to the temper of the community; (10) in sustaining objections to all questions on cross-examination of the State's witnesses designed to establish over-zealousness and animus of the police in reference to their efforts as to the confessions; (11) in restricting the cross-examination of State's witness Miller; (12) in restricting the cross-examination of State's witness Toft; (13) in denying certain requests to charge; (14) because the verdict was inconsistent with the evidence presented because the alleged principal was acquitted.
Each point advanced will be dealt with in order of its presentation.
William Horner and his reputed wife, Elizabeth McGuire, generally known in the community and referred to at the trial as Mrs. Horner, conducted a second-hand furniture store at 213 North Broad Street, Trenton. On the morning of January 27, 1948 he was murdered with a blunt instrument and she was seriously injured by an assault hereinafter described.
The first floor of the establishment consisted of two rooms, both stacked high with old household furnishings, appliances and accessories. Each extended the full width of the shop and the floor of the rear room was a step lower than that of the front.
Mrs. Horner testified on the morning in question, about 10:30, three colored men entered the store (whom she subsequently identified as the defendant English and his co-defendants Forrest and Wilson, who were acquitted on the retrial); English and Forrest proceeded to the rear room where Horner was, while Wilson asked her about a second-hand stove; she was engaged in showing it to him when she received a severe blow on her head and another on her face; she was stunned and rendered partially unconscious, her next recollection being of standing at the front door calling for help.
She was taken to a hospital where several stitches were required by the lacerations about the head, and it was ascertained she had sustained fractures of her ribs and cheekbone. The medical testimony indicated a severe swelling of her entire face and edema of the conjunctiva and eyelids to such an extent her eyes were completely closed at the time of an ophthalmological examination four days later. This condition had, however, largely subsided by the time of her discharge from the hospital on February 5.
A passerby, one Frank Eldracher, saw Mrs. Horner, her face bloodied, open the door of the furniture store and heard her begin to scream. He ran to the corner and notified a
police officer who proceeded to the scene, spoke briefly to Mrs. Horner, discovered Horner lying unconscious on a mattress in the back room and turned in the alarm. An ambulance was summoned and Horner taken to Mercer Hospital, where he died that afternoon of a compound, comminuted fracture of the skull which, according to the autopsy surgeon, was caused by a blunt instrument and could have been inflicted by a bottle such as that admitted in evidence as Exhibit S-40, described and discussed below.
Police officers inspecting the premises found a full bottle of soda water in the back room and the neck of a bottle of similar make in the front. Both were covered with fragmentary ridges and smears of fingerprints but, in the opinion of the police expert who examined them, these traces were not sufficiently clear and complete to be of any value either to identify the person or persons who made them or to eliminate a possible suspect.
On February 6 a policeman went to the home of George English, father of the accused, in response to a complaint that the son was using the father's car for his own purposes without permission. Pursuant to this complaint Collis English was picked up at his mother's house, where he lived, and taken to the precinct for questioning.
During the interrogation English was queried about possible participation in the events of January 27 at the Horner store. At first he denied all knowledge, but later admitted he had driven to the vicinity with the defendant Cooper in the car belonging to his own father. There, at Cooper's request, he had gone into a nearby jewelry store to inquire about a watch of Cooper's. The jeweler denied having it and English emerged to the sidewalk in time to see Cooper and two other colored men run out of the secondhand store and drive off in the car, one of them having what appeared to be blood on his shirt. The officer took longhand notes on this statement, which is the subject of more detailed discussion hereafter.
Early the following morning, on information from English, the police arrested the defendants Cooper and Wilson. On the same day the defendant Forrest arrived at the police station to inquire about English and was also detained. Shortly thereafter the other two defendants, MacKenzie and Thorpe, who had been implicated by stories given the police by English and Cooper, were apprehended.
On February 7 Mrs. Horner was taken to the police station and was shown three or four of the accused, including English and Cooper, but was unable to identify any of them as her assailants.
Between the time of their arrest and February 11 all of the accused except Wilson made statements, some in their own handwriting and some in formal question and answer form typed and signed, admitting some part in a planned robbery of and assault upon the Horners. Only two of these statements, one by each of the present appellants, were admitted in evidence under circumstances which will be discussed later. On February 11 all six accused were arraigned.
The second trial was protracted, complicated and lengthy, consuming almost 15 weeks in time. There were many exhibits and more than 140 witnesses were heard. Many conflicts in the evidence occurred and the testimony frequently clashed. It resulted in the acquittal of all except English and Cooper, who were again convicted and sentenced to life imprisonment. On this appeal they assert the 14 grounds for reversing the judgment already specified.
The first error cited is the trial court's refusal to direct a judgment of acquittal on the defendants' motion at the end of the State's case and again at the completion of the entire case. These motions were predicated on the alleged failure of the State to prove the killing occurred during the course of a robbery or attempted robbery and that there was any unlawful combination or conspiracy among the
defendants and no legal evidence before the jury from which an inference of guilt could properly be drawn.
Mrs. Horner, the appellants stress, immediately after the crime described her assailants as being "light colored" and was unable to identify any of the men shown to her at the police station on February 7 which group supposedly included both English and Cooper. They, it appears from the record, are of very dark complexion.
She also testified only three persons were in the store at the time the crime was committed and that Cooper, whom she knew from a previous occasion, was not one of these. The State's theory was that five of the accused entered the store while the sixth remained on the sidewalk as a look-out. There is evidence showing while Mrs. Horner was exhibiting the stove immediately before she was struck, she was at the rear of the front room, which was piled high with old furniture and kindred miscellany, and so would not have been in a position to see two others who might have entered the store after the arrival of the first three but before the crime was committed.
It is suggested Mrs. Horner first reported she had been struck with brass knuckles whereas, according to the State's theory, the soda bottles found in the store soon after the crime were the weapons used.
At the time she was assaulted Mrs. Horner was bending over the stove to open the grate and was hit from behind. As she lifted her head she was hit again on the side of her face, suffered serious injuries and thereafter apparently has little recollection of what occurred. It would be difficult for her, under the circumstances, to know what had hit her, and the mention of brass knuckles is simply another minor instance of conflict in the evidence to be considered by the jury in making its determination.
There were other discrepancies in the accounts by the various witnesses of the stature, coloration and clothing of the persons seen in or near the store at about the time of the crime. Mrs. Horner described the shortest of the men as
being young-looking and wearing a tan slouch hat, tan overcoat and silver-rimmed glasses. English was the shortest of the six accused and was not proved ever to have worn glasses. He was, moreover, charged at the trial with having been dressed in a peaked jockey cap, a tan worksuit and army leggings. However, Mrs. Horner saw only three men in the store but was admittedly in a position, immediately before the assault upon her, where she could not command a view of the whole front room. While her testimony in this respect in no way connects English with the crime nor carries any weight in establishing his presence in the store at the time, neither does it tend to rule out the possibility of his having been present nor serve to refute other testimony, including his own subsequent statement, tending to establish his presence and participation.
The State's witness, Eldracher, described two men whom he saw coming out of the store as being "light complected, not overly dark," and said the shorter one was the lighter and the taller a little darker. He testified the men walked north on Broad Street and he did not see them cross the street nor hear a car leaving the area. Immediately thereafter his attention was distracted when Mrs. Horner, her face bloodied, appeared at the door of the shop and began to cry for help and he went immediately in search of a policeman.
The State's theory was the killing occurred during an attempted robbery in which both appellants had participated. The defense vigorously points out the State did not claim or attempt to prove that either English or Cooper struck the fatal blow, and it is urged there is no proof either of robbery or an attempt to commit the offense and thus the crime cannot be designated first degree murder as a homicide occurring in the course of a felony. The appellants' brief sets forth its objection thusly:
"The evidence produced by the State was conflicting, confusing, irresponsible, contradictory. It was not sufficient in character or quality to overcome the presumption of innocence. It is not such
evidence as can be asked to support a conviction of murder. * * * Outside of the confession of English, there was no proof of any robbery or attempted robbery and there was no corroboration even of English's confession on this point."
We entertain no difficulty in reaching an opposite conclusion. It is not necessary that English's confession or Cooper's holographic statement be corroborated by external evidence in every respect.
"The only limitation upon the use as evidence against him of a prisoner's confession of murder, voluntarily made, is the want of proof of the corpus delicti. If death, through criminal agency, be proved, and a man confesses to having caused that death, he may be convicted of murder on his confession." State v. Kwiatkowski, 83 N.J.L. 650 (E. & A. 1912).
The same rule was enunciated in State v. Banusik, 84 N.J.L. 640 (E. & A. 1906), the court saying:
"Full proof of the body of the crime, the corpus delicti, independently of the confession, is not required."
This rule was again affirmed in State v. James, 96 N.J.L. 132 (E. & A. 1921), where the court observed:
"The law does not require full proof of the body of the crime independent of such confession."
This rule still prevails, as indicated by the holding in State v. Cole, 136 N.J.L. 606 (E. & A. 1948), where, on facts somewhat approximating those presently encountered, the court again adhered to the rule of the Kwiatkowski case, supra, saying:
"The law of this state is settled that if death, through a criminal agency, be proved, and a man confesses to having caused the death, such proof will support a conviction of murder."
As to Collis English, the defense points to testimony of members of his family and neighbors that he was engaged at the time of the crime in assisting his mother with the
family wash. It attempts to discredit his confession by pointing out a cardiac condition which had existed for some time and was noted on his army records when he was discharged from the service. The effort is to show not that English was in any way physically abused while in the custody of the police before making his statement but that mental pressure induced by the fact of arrest and accusation and the imposing presence of the police officers combined with his own lack of education and physical weakness to produce a state of fear and an ultimate resignation to co-operate in supplying whatever statement the authorities desired in order to assure his own good treatment at their hands.
This argument overlooks the fact there is much external evidence corroborating English's confession. In the statement he described a meeting of five persons, including Cooper and himself, which took place on the day prior to the crime, admitting plans were made to rob the store "and see who was to do what and where they would take their positions." It was agreed "tomorrow would be a good day because business would be slow."
The confession goes on to say that the following morning Cooper met him at Perry and Broad Streets and they drove on to pick up McKinley, Thorpe and Wilson. On the way to the furniture store they stopped at the New Life Lunch at Perry and Broad Streets, where they purchased soda bottles. He continues to narrate: "Wilson said we would use the bottles like a gun. McKinley said they were too big to look like guns and Wilson said, 'What's the difference?'"
They proceeded to the store, parking the car nearby, and all went in. English says he saw one of the other men strike Horner on the head with a bottle and the victim fell toward a mattress on the floor. He was told by Wilson "to go in his pockets and to hurry up about it. I was kind of shaky and when he seen how shaky I was Wilson said: 'Get out of here. You're too damn slow.' While I was in his pockets I got a few dollars out of his pockets." The statement goes
on to identify the pocket from which the money was extracted as the right-hand pocket.
Various parts of this statement are corroborated by the testimony of other witnesses and by other evidence. For instance, one of the victims, Mrs. Horner, identified English at the trial as being a member of the group present in the store when the assault took place. She had been unable to do so at the police station two days after her discharge from the hospital, but there is evidence she was still suffering then from some impairment of vision as a result of the blows she had received.
The proprietress of the New Life Restaurant at Perry and Broad Streets testified that about ten o'clock on the morning of January 27, 1948 she sold two bottles of a beverage called "Step-up" to two colored men who took the bottles with them from the store. The bottles were colored brown and green. The full soda bottle found at the scene of the crime was a green bottle of Step-up and the bottleneck which still had the cap on it was a brown bottle of Step-up.
There is additional corroboration in the fact English in his confession correctly described the position of Horner after the assault. He said Horner was sprawled across a mattress on the floor in the back room of the shop. That is the position in which he was found by the police officer summoned by Eldracher.
English recounts taking some money from the right-hand pocket of Horner. There is testimony of police officers to the effect as examination of Horner's clothes made after his arrival at the hospital showed various sums in other pockets, but there is no record of money having been found in the right-hand trouser pocket.
The appellants attempt to refute the State's theory of robbery or attempted robbery by pointing out cash in the amount of more than $1,600 was found in Horner's pockets by the police, and Mrs. Horner testified she had $900 on her person which was not taken from her. This, it is
asserted, negatives English's statement he took "a few dollars" from the right-hand pocket of the decedent.
The evidence does not warrant this conclusion. It is understandable that after such an assault the perpetrators would be under mental compulsion not to tarry unduly at the scene, particularly when the possibility was ever present that the stunned victims might recover consciousness and give the alarm. Under such circumstances it is entirely conceivable that a search for money or other valuables might be confined to the one pocket where the assailants thought them most likely to be when no further time existed for both detailed exploration and safety by way of escape.
The defense asserts there is no evidence to connect Cooper with the crime. They point out Mrs. Horner's testimony that she knew Cooper from a previous visit and he was not present in the store when the assault was committed. As has already been described, Mrs. Horner was bending over a stove in the rear of the front room when the attack upon her was made and in that position she did not command a full view of the store. Cooper's holographic statement admits his presence at the time and place of the crime and he describes in detail the attack upon the proprietors, the method of its execution and the weapons used.
There is further corroboration of Cooper's statement in the testimony of George English, father of the co-appellant, that on January 9th, while he was engaged in cleaning the furnace in the basement of his house, he overheard a conversation between Cooper and the witness' stepdaughter in which the defendant sought the help of his companion in borrowing the witness' car because "he had some robbing to do up on Broad Street * * * at a second-hand furniture store."
The defense urges much of this testimony is considerably impaired by the cross-examination of the witness, showing prejudice, bias, a criminal record and improbability. The weight and credence to ...