On appeal from the Union County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J. Heher, J. (dissenting).
Eugene Monahan and Michael, his 15-year-old son, were charged with murder in two indictments returned in Union County. A motion for severance of the defendants for trial was made and granted by the court. We subsequently decided jurisdiction as to Michael was in the Juvenile and Domestic Relations Court. See State v. Monahan, 15 N.J. 34 (1954).
The two indictments against Eugene Monahan were consolidated for trial. The State's case was based upon the theory that the defendant Eugene Monahan perpetrated or attempted to perpetrate a robbery in the course of which two men were shot and killed.
The crime occurred on March 7, 1953. The appellant, 44 years old, drove his son Michael to Elizabeth from their home in Vaux Hall, Union, New Jersey. Michael, who apparently had been in trouble with the police before, went to the court house to report to his probation officer, while his father went to the Shamrock Bar and Grill, 12 South Broad Street, Elizabeth, where his son joined him at about ten o'clock in the morning.
After drinking some beer, the appellant sent his son to the car for a Luger automatic pistol which was in the glove compartment. When Michael returned, the two or three customers who had been there had left and no one else was in the bar except his father and the bartender. Michael gave his father the Luger in the men's room, and when they returned to the bar, he locked the front door on his father's
instruction. The appellant drew the pistol, said, "This is a stick-up," and then fired at the bartender, Sebastian Weilandics, who ran from behind the bar toward the back door of the premises, where he collapsed. He had been shot four times in the chest, death resulting from a hemothorax perforation of the lung.
As the Monahans started for the front door, a customer, William Diskin, was attempting to enter. The appellant unlocked the door and let him in. Diskin looked directly at Eugene Monahan, who, according to his own version, realizing he would later be thus identified, drew the Luger from his coat pocket and shot Diskin three times, twice in the back and once in the chest. Death was caused by a perforation of the heart, lung and liver, hemoperitoneum and hemothorax.
After the shooting, Eugene and Michael left the tavern, got in their car and drove around the block. Observing there was no commotion at the scene of the crime and assuming it had not yet been discovered, the appellant stopped the car, went back into the tavern, vaulted the bar and took the receipts out of the cash register, amounting to $53.25.
Returning to the car, he circled the block again, this time noticing a large crowd gathered in front of the tavern. Then he drove to the family home in Vaux Hall, after first stopping for gas.
The Luger was concealed in the cellar for a few days, after which Michael Monahan destroyed it with a sledge hammer in compliance with his father's instructions. The broken parts were thrown into the Passaic River.
The police authorities apprehended the Monahans about six weeks later after they had been arrested in connection with another crime in Essex County, when Michael for the first time informed the authorities what had taken place at the tavern in question.
Most of the facts outlined are taken from a statement made by the appellant, but there is a considerable amount of confusion and contradiction because the statements made by the son vary to a substantial extent.
Michael first said, in two different statements, that he did the shooting and took the money from the cash register. However, he later made a third statement, Exhibit S-68, one of the subjects of controversy hereafter discussed, in which he said the shooting was done by his father and that he had previously admitted doing it "because of the fact I wanted to protect my father."
The main defense was insanity. The appellant was found guilty of murder in the first degree on each of the two indictments and was accordingly sentenced to death.
Six points are raised on appeal and will be dealt with in order of their presentation.
During the direct examination of a witness, Detective Englehart, in order to present some of the evidence required, the prosecutor turned to Lt. Jury, who was not a witness, and took from him two envelopes, one containing a piece of metal found by Englehart and the other, two 9 mm. discharged shells that had been handed over by the witness, at which time Lt. Jury described the articles in question.
It is contended this was prejudicial procedure, but on oral argument the point was specifically abandoned and will not therefore be further considered.
The next issue presented involves the admission of Exhibit S-68 and a denial of a motion on behalf of the appellant to expunge the same exhibit.
It is referred to by the appellant as the statement of Michael Monahan, and the contention is its admission into evidence was prejudicial error in that it violated the best evidence rule and the provisions of the Constitution of the State and of the United States. The statement was primarily made by Michael but it was signed on each page by his father. Appended to it was the appellant's sworn statement that it was read to him and that every word was true.
All the cases submitted by the appellant are urged upon us with an eye to analogizing Exhibit S-68 to a statement not made by a defendant himself but by someone else, for which reason it is not admissible in evidence. The suggestion
is that the appellant's right of cross examination was eliminated because the author of the statement was not produced as a witness.
The factual manner in which the issue is presented would at first blush seem to give the thought some merit, but viewed in the light of the complete record, the ...