On appeal from the Hudson County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The defendant, Rogers, was convicted of murder in the first degree with a recommendation of life imprisonment. He appeals from the judgment of a life sentence, contending there was error in the refusal of the trial court to allow the number of peremptory challenges to prospective jurors granted by statute; in the admission of certain exhibits and testimony which substantially prejudiced his rights; in the refusal to dismiss the indictment and grant a motion for acquittal; and in charging the jury they might take into consideration the failure of the defendant to take the stand.
There were two indictments, the first charging the defendant with the murder of William Hummel and the second charging the defendant with the murder of Edith Hummel, who was William's daughter. By stipulation, both indictments were consolidated and the trial proceeded as one case.
The State's case is based entirely on circumstantial evidence and one of the main inquiries is whether or not certain testimony and exhibits were too remote to permit their admission into the record at the trial.
Some time before 10 A.M. on the morning of June 19, 1953 the defendant, George W. Rogers, drove his close friend, William Hummel, to the First Savings & Loan Association at 26th Street and Broadway in the City of Bayonne. Hummel withdrew $2,400 in cash from his savings account, receiving three or four $100 bills and the balance in $20 bills. The bank teller who waited on him on this occasion was the last person who saw Hummel alive.
Hummel, 71 years of age, lived with his unmarried daughter, Edith, in a one-family dwelling which he owned at 582
Avenue E in Bayonne. Prior to June 19 he had sold the house and was making preparations to move to Florida. He had made arrangements to visit relatives living in Bloomington, New York, on June 20 and for that purpose had purchased two round-trip bus tickets to Bloomington for himself and his daughter on June 16.
When the Hummels did not arrive in Bloomington as scheduled, the relatives they were to have visited became concerned and on June 24 wrote to a sister of Hummel who lived in Jersey City, requesting she look into the matter. This inquiry resulted in two brothers-in-law going to the Hummel home in Bayonne on July 1. The house was closed and there was no response to their knocking and bell-ringing. They made inquiry of the neighbors, including Rogers, who lived diagonally across the street from the Hummels, as to whether they had seen or knew of the Hummels' whereabouts. Rogers told them he had given Hummel a ride to the bank on the morning of June 19 but said he had not seen or heard from him since.
The brothers-in-law went to the Bayonne police on the same afternoon and submitted their problem to them. In their company, the police went to the Hummel home and broke into the house. They discovered the badly decomposed body of William on the floor of the dining room and in a rear bedroom on the second floor they found the body of Edith in like condition, partly under a bed. It was evident both had been dead for several days, and the autopsical report and subsequent testimony showed they had died of fractured skulls produced by violent blows to the head. The condition of the bodies made it impossible to estimate the approximate time of death.
The following is a resume of the facts and evidence relied upon by the State to prove its circumstantial case. Attempting to establish the probable time of death of the Hummels, the State produced John Joseph Harding, a newsdealer who operated a store in the vicinity of the Hummel home. He testified that for the past 20 years it had been William Hummel's regular practice to pick up his morning newspaper at
the store at about 10 A.M. but on the morning of June 19 Hummel did not appear nor was he seen thereafter.
Two newsboys who regularly delivered afternoon newspapers to Hummel's home testified they delivered a newspaper there at 4:30 in the afternoon of June 19. This being a Friday, the day they usually collected for the papers delivered during the week, they rang the doorbell of Hummel's home but it remained unanswered. So they pushed the paper through the slot of the outer door on the front porch.
At 6:30 on the same evening and again on the following morning one of them returned to Hummel's home and made further effort to collect for the papers but received no response to the ringing of the bell. On each subsequent weekday thereafter until the bodies were discovered he continued to leave an afternoon paper, although he could see the previous papers as well as the mail had accumulated on the porch.
Upon this evidence the State theorized the Hummels had been murdered sometime between 10 A.M. and 4:30 P.M. on June 19, and the date of death, as we shall see, is an important element in the chain of circumstances pointing to the guilt of the defendant.
The State's evidence demonstrated quite clearly that the defendant was a close friend of Hummel's and a frequent visitor to his home. This relationship was common knowledge in the community and it was because of it that Hummel's brothers-in-law made inquiry of Rogers on July 1 as to the Hummels' whereabouts. In fact, the relationship was so close that at some time prior to June 19 Rogers and his wife were given a key to Hummel's house and on past occasions when the Hummels were away on vacation they had visited the house.
Rogers and Hummel also had financial dealings with one another. Between May 1, 1947 and November 3, 1949 Hummel advanced to Rogers a total of $7,534.66 which Rogers was to have used in the purchase of surplus war material and kindred transactions. These matters were recorded in a typewritten statement prepared by Hummel prior to his death (S-43) found in his home following the murders. It was
established by expert testimony the statement had been typed on an old Underwood typewriter owned by William Hummel, but the State was unable to fix the date on which it was typed, although from the matters reported therein it apparently must have been typed subsequent to November 3, 1949. The concluding paragraph of this statement read:
"It may have been unwise on my part to continually advance money but said Rogers is very temperamental and I was in constant fear that he might have renegged on the purchase from the WAA and I would be in danger of losing everything * * *."
It was the State's theory at the trial that the transactions referred to in the statement, two copies of which were introduced in evidence, differing only slightly in their contents, over the objection of the defendant, were loans from William Hummel to Rogers. Rogers, it was contended by the State, was motivated, at least in part, in murdering Hummel by a desire to wipe out the obligation on these loans. Further supporting this theory, the State proved Hummel's canceled checks, payable to Rogers and evidencing these loans, were missing from the envelope found in Hummel's home after the discovery of the bodies. The identity of the missing checks was established through the stubs found in Hummel's check books.
The State proved that on June 19, 1953 and for some time previous thereto the defendant was in limited financial circumstances. It was shown the three savings accounts maintained by Rogers and his wife in a Bayonne bank contained a total of $20.88 and no transactions had been made in these accounts for several years. Rogers had no other bank account in Bayonne and for a number of years had borrowed money from small loan companies in the city. There was a law suit pending against him for a business debt and he was indebted to several other firms from which he had purchased material used in his business, plus the fact that he was also paying off a small balance on a note held by a New York bank.
Although Hummel had withdrawn $2,400 in cash from the bank on the morning of June 19, a diligent search by the
police of the Hummel home after the discovery of the bodies revealed no portion of it. There was evidence by the State to show that between June 22 and June 30 Rogers paid out a total of $1,006.51 in connection with various business and loan transactions and that on June 30, 1953 he purchased certain equipment at the Continental Sales Company, Inc., in Newark which he paid for with three $100 bills.
Another witness identified a typewriter which was found in Rogers' home as the typewriter Hummel had purchased about a month before his death.
There was offered in evidence a pair of grey trousers which a detective had found in Rogers' home after the discovery of the bodies. A witness, Paul Scheff, identified the trousers as those which Rogers had worn practically every day for more than two years prior to June 19. He also testified that when he saw Rogers on June 20 he was wearing a pair of khaki trousers. The chemist who examined the grey trousers at the request of the police testified they had recently been washed but there was still a stain of blood on them although he was unable to say whether it was human blood or how long it had been there.
Scheff testified he had a conversation with Rogers on June 22, some eight days prior to the discovery of the bodies and before anyone knew the Hummels were missing or had been murdered, in which Rogers said:
"* * * that they had somewhat of a mystery in their neighborhood; that he had picked this Mr. Hummel up and taken him to the bank and Mr. Hummel had tickets to visit someone in New York somewhere and they had sold his home and that he was going up there and no one has seen or heard of him since, and he was wondering why the people in New York hadn't done something, or somebody hadn't done something to find out as to their whereabouts."
Forest, an insurance agent, testified Rogers was a customer of his and he had a conversation with him on the front porch of his home on the same day, to wit, June 22, in which Rogers asked him if he had seen the ...