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State v. Homer

Decided: January 29, 1965.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERBERT HOMER, DEFENDANT-APPELLANT



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Defendant appeals as an indigent, with assigned counsel, from a judgment of conviction, before a jury, in the Hudson County Court, Law Division. He was sentenced to an indeterminate term not to exceed three years to be served at the New Jersey State Reformatory at Bordentown, and he was fined $500.

The indictment was in one count and charged a violation of N.J.S.A. 40:40-28.7 and N.J.S.A. 40:40-28.8. The former provides:

"A citizen who may become aware of any person who shall have died of criminal violence, or by casualty or suicide, or in any suspicious or unusual manner, shall report such death to the office of one of the coroners of the county or to the police department of the municipality in which such person died or his body was found."

The latter provides that:

"A person who shall willfully neglect or refuse to report such death or, who without an order from the office of the coroner, shall willfully touch, remove or disturb the body of any such person, or touch, remove or disturb the clothing or any article, upon or near such body, shall be guilty of a misdemeanor."

The criminal offenses under consideration involved three men, Allen Lydecker, Edward McCormack and defendant Homer, each of whom was indicted. Lydecker pleaded guilty and testified as a witness for the State. McCormack and Homer were tried jointly and each was found guilty. We are here concerned only with the appeal by Homer who contends, inter alia, (1) the statutory provisions under which defendant was convicted are unconstitutional; (2) the trial court erred in denying defendant's motions for acquittal, (3) the trial judge in his charge failed to limit the effect of his codefendant's confessional statement, and (4) the trial court excessively, and to defendant's prejudice, interjected itself in the trial of the case.

The testimony of the three indictees was variant and conflicting in many significant details.

Lydecker stated that on the morning of July 20, 1962 he was asleep in his apartment at 5110 Palisade Avenue, West New York. Also present were his wife, his two-year-old son, and McCormack, who had slept there overnight. Lydecker was awakened at approximately 10 A.M. by defendant who had entered through the front door, which Lydecker always kept unlocked. Defendant informed him that his brother, Lawrence Homer, whom defendant had brought to the apartment in a state of unconsciousness, had taken an overdose of narcotics and needed help. Lawrence was placed on a couch and attempts were made to revive him by an injection of a salt solution and by "slapping" him. Defendant then left for work, after suggesting that a doctor be called. Soon thereafter Lydecker's wife and child left the apartment. A doctor was never notified. At about 3 P.M. Lydecker observed Lawrence perspiring, and he and McCormack left to find a telephone in what proved to be an unsuccessful effort to contact defendant. They did not return to the apartment until approximately 5:30 P.M., when they met defendant who was returning from work. Upon seeing his brother, defendant exclaimed, "Oh my God, he looks dead," and, after listening to his heart, exclaimed, "He died," and then defendant started to cry. They

waited until 9 P.M., and, after rejecting the idea of calling a doctor, decided to take Lawrence to New York. The three men carried him down the one flight of stairs from the apartment, placed him in the rear of "Mr. Homer's" open pickup truck in a prone position and covered him with a blanket. Defendant drove the truck, which was followed by Lydecker and McCormack in a car owned by defendant Homer. They proceeded through the Lincoln Tunnel and finally abandoned the truck and Lawrence at 120th Street and 5th Avenue in New York City.

Lydecker attributed his reluctance to call a doctor to the fact that he had been released on bail in another matter two days earlier and he feared a police investigation of the circumstances of Lawrence's condition. He further stated he was unsure whether he observed that Lawrence perspired or made any sound after 3:30 P.M. on July 20.

McCormack, testifying in his own behalf, stated that he was sleeping in the living room of the Lydecker apartment on July 20 and was awakened by defendant at 10:30 A.M. He noticed that Lawrence appeared to be in "a state of drunkenness" and was breathing, coughing, perspiring and uttering moaning sounds. McCormack, having been intoxicated the previous night, fell asleep again until approximately 3 P.M., at which time he observed Lawrence to be in a more relaxed state -- but still perspiring and moaning. He left the apartment with Lydecker and returned later in the afternoon (about 5:30 P.M.) when he heard someone remark, in reference to Lawrence, "Is he dead?" or "He is dead?" McCormack said, however, that Lawrence was then still perspiring and making "grunting" sounds. On deciding to take Lawrence to New York to find help, the witness and Lydecker, around 9 P.M. when it was dark, assisted Lawrence by the arms down the stairs to the truck. Lawrence's feet were not lifted as he was able to move them himself. He was placed in the cab of the truck and was not observed by McCormack when the vehicle and Lawrence were abandoned in New York.

Defendant Homer testified that on the morning of July 20, 1962 he met Lydecker in front of the latter's apartment building. He was informed that his brother Lawrence was in the apartment suffering from an overdose of narcotics. He accompanied Lydecker upstairs and attempted to revive his brother, testifying "Well, we applied ice to the lower part of his back and slapped him around, walked him around a bit." This therapy appeared to partially succeed. Defendant thereupon left for work, returning at about 6 P.M. He found his brother much improved, perspiring and snoring as he peacefully slept. During the next hour, defendant became increasingly more concerned and, at Lydecker's suggestion, he decided to transport his brother to New York in an attempt to find help in an area frequented by narcotics users. At 9 P.M. Lydecker and McCormack helped Lawrence down the one flight of stairs and into the cab of a truck. In doing so they "twisted his foot" to which he reacted by saying "Ouch." In the course of the trip to New York, Lawrence remarked, "I am okay, man. I am just twisted [under the influence of narcotics]." Upon parking the truck at 120th Street and 5th Avenue, defendant and Lydecker placed Lawrence in the rear portion of the open vehicle so as to attract the attention of someone who might render assistance. Before his departure for New Jersey, defendant noted that his brother was still breathing and perspiring.

In addition to Lydecker, the State produced as witnesses two police officers from the New York City Police Department; a detective from the municipal police department of West New York, New Jersey; an officer of the Narcotics Division of the Hudson County Prosecutor's Office; and Dr. Henry Seigel, Deputy Chief of the Office of the Chief Medical Examiner of the City of New York.

The medical evidence was introduced to corroborate the testimony given by Lydecker that decedent actually died on July 20 in New Jersey. Dr. Seigel testified that the body of Lawrence Homer was discovered at the corner of 120th Street and 5th Avenue at 9:20 A.M. of July 21. Lawrence was pronounced

dead at Harlem Hospital and the cause of death was attributed to acute chronic intravenous narcotism. The doctor viewed decedent's body at noon on July 21, and an autopsy was performed by him at 1:30 P.M. After explaining the difficulty in such a case of establishing the time of death, he stated that "he [Lawrence] must have been dead at least 12 hours," and his best estimate of the time of death, within a reasonable degree of medical certainty, was more than 12 but less than 18 hours prior to his first view of the body. He was, however, less confident of the maximum than the minimum probable number of hours that Lawrence had been dead.

I.

Defendant claims that the words in N.J.S.A. 40:40-28.8 "shall willfully touch" the body of the deceased, and "touch," referring to "the clothing or any article, upon or near such body," are so vague and indefinite as to fall within the interdiction of due process and render the statute unconstitutional and unenforceable. It is illustratively argued, "If a person drop[s] dead on the street and his hat rolls two feet away from his body, will the touching of that hat subject one to a prison term of three years? * * * Will a doctor who attempts to inject adrenaline into the heart of a person who is dead on an outside chance of reviving him be subject to a prison term under this section?" That argument ignores the fact that the legislation in question is part of the Coroners' Act and is specifically limited to a person who died under stated conditions. Its obvious purpose is to prohibit the willful disturbance of such a corpse or the scene of a death when the circumstances require an official investigation. The law is justifiably concerned with public rights in deceased persons. Note, Jackson, The Law of Cadavers (2 d ed. 1950); 15 Am. Jur., Dead Bodies, ยง 37, p. 857 (1938).

The removal of a dead body from New Jersey to New York under facts such as revealed in the present record would clearly come within the afore-quoted prohibitory legislation

and would constitute a direct interference with the administration of our criminal laws.

It is not uncommon to find regulatory penal statutes which are necessarily couched in broad terms because of the particular nature of the subject in question. This court said in State v. New York Central Railroad Co., 37 N.J. Super. 42, 48 (1955):

"That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls. is not a sufficient reason to hold the language too ambiguous to define a penal offense."

That case was cited with approval in State v. Monteleone, 36 N.J. 93, 99 (1961), with the comment, "If a statute is reasonably appropriate in its overall approach, it should be upheld notwithstanding that it may be invalid in its application in special circumstances or fringe areas." See also Sanitary Vendors, Inc. v. Byrne, 40 N.J. 157, 162 (1963), affirming 72 N.J. Super. 276 (Law Div. 1962), in which our Supreme Court said the traditional course of judicial interpretation "strains to give reasonable definiteness to general legislative standards and thereby avoid constitutional challenge," citing authorities.

The language of the statute under consideration is not so vague and uncertain as to make it unconstitutional, particularly in relation to its coverage of the activities of defendant as shown by the evidence herein. It has a legitimate object, and its mandate sufficiently designates the actions proscribed. An ordinary person can reasonably and intelligently conclude what is intended. "Reasonable certainty fulfills the constitutional requirement, and liberal effect is always given to the legislative intent, where possible." Annett v. Salsberg, 135 N.J.L. 122, 126 (Sup. Ct. 1947), affirmed per curiam 136 N.J.L. 194 (E. & A. 1947). See also State v. Russo, 6 N.J. Super. ...


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