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State v. Gosser

Decided: November 27, 1967.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN WESLEY GOSSER, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.

Per Curiam

Defendant appeals from a conviction for second degree murder in the shot-gun slaying of his wife at their home in Sea Isle City, Cape May County, on November 5, 1965. The sentence was 12 to 20 years imprisonment.

The State's proofs made it abundantly clear that defendant committed the act. This he never challenged, although insisting that the prosecution prove its case. He did not take the stand. There were only two real issues at the trial. One was the defense of criminal insanity at the time of the offense. In summation, his counsel sought a verdict of not guilty by reason of such insanity rather than an acquittal. He admits that the proofs were in conflict on the requisites of the M'Naghten rule and agrees that there can be no valid challenge, on the score of sufficiency or weight

of the evidence, to the rejection of the defense by the verdict of conviction. On the other side, the real issue was whether the State was entitled to the first degree verdict it sought. (It did not ask the death penalty.) While there was evidence, as defendant candidly states in his brief, from which premeditation and the other elements necessary to establish murder of that degree could have been found, the jury also rejected this contention by returning the second degree verdict.

Defendant's grounds for reversal and a new trial are confined to allegedly erroneous pre-trial and trial rulings relating principally to the admission of evidence, the State's summation and the court's charge, of which some are suggested to be of a character calling for automatic reversal regardless of whether prejudice in fact resulted. Any claimed errors not of this character are, of course, cause for reversal only if "* * * it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury." R.R. 1:5-1(a). Determination of whether this criterion has been met must be had in the light of, among other things, the issues actually tried and the verdict rendered.

We are thoroughly satisfied upon a review of the whole record that the defendant had a fair trial, that the verdict was one which the jury could very properly reach upon the proofs, and that the grounds urged fall far short of reversible error. While the case was hard fought and, indeed counsel too often became overly vigorous, more so on the defense side, Judge Francis handled the entire proceedings carefully and judiciously. Some of the evidence should be sketched in order to make clear our comments upon defendant's points.

Defendant, a man about 50 years of age, had been married to the victim for some 20 years. They operated a beer distributing business in a suburb of Philadelphia for a time. The business was sold in 1955 and the couple moved to Sea Isle City. Defendant thereafter had no steady employment

and little income beyond that derived from occasionally taking parties out fishing on his boat. His wife was a person of some means, however, and they apparently lived well. The marriage was childless and not a happy one. There was continual quarrelling and bickering over many things, among them money, the unwillingness of the wife to have children, and the company each kept. Defendant was pictured as a passive and weak man; his wife was asserted to be a nagging spouse. He drank heavily for a time, but was said to have tapered off some time before the shooting. The wife, on the other hand, had become a steady imbiber by the time of her death. In 1964 the parties separated under a formal agreement with a property settlement, but returned to living together a few months later.

The State's proofs established that on the day of the shooting a friend of the defendant's was at the home for dinner. He left about 6:00 P.M. when the defendant and his wife commenced quarrelling. After dark the next afternoon, a female friend of the wife's, who lived several miles away, received a telephone call from the defendant. His voice was distraught; he said something terrible had happened and asked her to come to the house. Instead she called the Sea Isle City police and a patrolman was immediately dispatched. Upon arrival he knocked on the front door. Defendant finally came stumbling down the stairs and opened the door. He appeared groggy, upset and crying, with caked blood on his pajamas and his face. The officer asked what the trouble was and he said that he had killed his wife. He was directed to sit on the couch in the living room and remain there. The officer returned to the patrol car in front of the home and radioed to headquarters for assistance. A sergeant and another patrolman arrived within a very few minutes. In the interim, the first officer stood watch outside the house.

The three policemen again knocked on the door, then partly open, and called for the defendant, who was not in the living room. When he finally reappeared at the foot

of the stairs, the sergeant asked what had happened. Defendant said he had shot his wife. When asked where she was, he replied "upstairs". The three then entered the house and the sergeant and one officer raced upstairs and searched from room to room. The other patrolman, at the direction of his superior, remained downstairs to watch the defendant, then seated on the couch. At this point, the defendant started complaining to this officer, without being questioned, about his wife's nagging and said that "all of a sudden something just snapped" and "I ought to get the electric chair for this". He also volunteered that he had taken a box of pills and wanted a glass of water.

During the upstairs search for Mrs. Gosser, the police officers noticed an empty gun case sticking out of the closet in one of the bedrooms and an open box of shot-gun shells on a dresser in the hall. Mrs. Gosser's body was found in the last bedroom entered, lying on the floor near the bed in her night clothing, with a gaping wound in the abdomen. It was obvious she was dead. Autopsy established the time of death as probably two or three hours after the preceding evening's meal and the cause as a single charge from a shot-gun at close range. Blood on the bed clothing indicated she was probably sitting on the bed when struck. Apparently she had slipped to the floor face down and had been later turned over on her back. After the discovery of the body, the sergeant asked the defendant where the gun was and it was soon found under the bed in his bedroom. There was one spent shell in the chamber and another on the floor nearby. A clip had to be used to insert two shells in the weapon, as had been done. Subsequent tests established that six and one-half pounds of pressure on the trigger was required to discharge it.

Following the locating of the gun, the sergeant went downstairs, advised defendant he was under arrest and applied handcuffs. The officer then telephoned the prosecutor's office and a local physician. The latter arrived within minutes ...


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