For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendant was convicted of murder in the first degree, and the jury not having recommended life imprisonment, he was sentenced to die. He appeals directly to this Court. R.R. 1:2-1(c).
The deceased, Stanley Caswell, had an insurance debit route which took him to North Ninth Street in Kenilworth. The residents there knew him as "the insurance man."
There are two houses at 218-220 North Ninth Street, one behind the other. Defendant's father occupied an apartment in the rear house. On February 12, 1965 Mr. Caswell was at the premises. Defendant too was there, to see his father on some matter. One State's witness placed defendant outside the house at about 6:00 P.M. on a course on which defendant and Mr. Caswell would have met. Moments later, one occupant heard two reports, like those of exploding firecrackers.
James Faines, who also lived at 220 North Ninth Street, testified that he and his friend, Lewis Clark, were working in the driveway on Faines' automobile; that he saw defendant pushing a man into the back seat of a red Renault which belonged to the insurance man; that he looked into the car and saw that it was the insurance man; that blood was coming from the victim's forehead and he was moaning; and that defendant struck Faines with his arm, saying "Get away from here, boy." Faines left, remarking to Clark that "It looks like Marvin was rolling the guy." Clark testified substantially to the same effect, although he did not look into the Renault and could not say who the victim was.
The testimony shows the Renault was then driven a short distance to a wooded area; that two further shots were fired; and the car then set afire. When the blaze was extinguished, the badly charred body of the deceased was found.
The autopsy revealed that death was due to four shots fired from a .22 caliber gun. There was testimony that late on the day of the murder or early the next morning, defendant tried to sell a small gun and a box of shells.
Defendant admitted being at his father's home at the time of the murder, but denied all knowledge of it. He said he did not know Mr. Caswell and did not see the red Renault. He denied trying to sell a gun. He said that on the 13th, the day after the crime, he heard his wife was in police custody and that he was wanted as a "material witness." He said his brother-in-law advised him to lose himself in Harlem for a while, in the hope that the culprit would meanwhile be found, and this because defendant had a criminal record. Defendant did go to New York City, but on the 15th he called the F.B.I., identified himself, and was taken into custody.
The first issue arises from some confusion over the State's theory. The indictment is in the short form prescribed by R.R. 3:4-3(c). Defendant demanded a bill of particulars designating the type of homicide the State planned to prove.
The State specified a killing during an attempt at robbery. Why the State so limited itself is a mystery.
The State in fact offered proof of the completed crime of robbery. Thus Mrs. Caswell testified the deceased wore a wristwatch, a wedding ring, and a Masonic lapel pin, none of which were recovered. Mr. Brady, a chemist, testified that his analysis of the charred remnants revealed no evidence of gold beyond that usually found in ordinary dirt or debris. There was no direct proof of the loss of money, for the deceased had apparently secreted his wallet in the car where it was found by the police, and some change, totaling less than two dollars, was still in his trousers. But the debit book was found, and an audit of it indicated a shortage of $3.93. There was also testimony that the right rear pocket of deceased's trousers was turned inside out.
The defense did not object to evidence indicative of a completed robbery. The reason apparently was that the defense conceived that proof of a completed robbery would foreclose a claim of an attempt to rob and thus lead to an acquittal. When the trial court rejected that view and the State sought to amend the bill of particulars to add "robbery," defense counsel objected, saying he had not cross-examined the several witnesses with respect to the items allegedly missing, because, as we have said, the defense concerned itself only with an "attempt." The trial court permitted robbery to be added by amendment, but then required the State to "elect" between robbery and an attempt. The State chose to pursue the theory of a consummated robbery, but when the defense insisted that it had been misled by the original bill of particulars, the State returned to the theory of an attempt to rob. Still the defense was not content, because when it lost its quest for an acquittal on the ground that the robbery had been completed, it found itself facing incriminating evidence it had thought would be helpful. So the defense moved to strike all the evidence with respect to the missing items. The trial court granted that motion, leaving in the case only testimony that the trouser pocket was turned inside out.
Although the State thus reverted to its initial theme and the trial court struck out evidence of an accomplished robbery, the defense now complains of the introduction of that evidence. It says that the State's claim of an "attempt" led it not to object to the evidence, and that striking it from the record and admonishing the jury to disregard it did not right the wrong.
The statute makes several kinds of homicide murder in the first degree. N.J.S. 2A:113-2. Included are a killing "committed in perpetrating or attempting to perpetrate * * * robbery." The State may pursue as many theses as the evidence will support. So here the State could have alleged in the bill of particulars: (1) a killing in the perpetration of robbery; (2) a killing in an attempt to perpetrate robbery; and (3), a "willful, deliberate and premeditated killing," especially in the light of the proof that two additional shots were fired into the decedent just before the auto was set afire, suggesting he was then still alive. State v. Butler, 27 N.J. 560, 590 (1958).
The notion that the State must select a single thesis is wholly without warrant. As we have said, any thesis fairly supported in the evidence goes to the jury. In pressing for an "election," the defense misread State v. Butler, supra, 27 N.J., at p. 589, where we said:
"* * * In the course of the argument of the motions for a judgment of acquittal at the close of the State's case, defense counsel requested that a designation be made as to whether the charge was robbery-murder or ...