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State v. Kress

May 9, 1968


Martino, A.j.s.c.


Three defendants stand indicted for the crime of murder. The indictment is in the usual form and alleges that they jointly, on November 7, 1968 in the Township of Cinnaminson, did willfully, feloniously and of their malice aforethought kill and murder Douglas Tyler contrary to the provisions of N.J.S. 2 A:113-1 and 2 A:113-2. They stand indicted in separate indictments of lesser offenses which include conspiracy to feloniously and forcibly take and steal from the persons of employees of the Garden State Bank (N.J.S. 2 A:98-1); carrying certain firearms, to wit, pistols (N.J.S. 2 A:151-41); stealing an automobile (N.J.S. 2 A:139-1); and robbery (N.J.S. 2 A:141-1 and 2 A:151-5).

The present application is directed to the murder indictment. Defendants move to quash it and seek an Order fixing bail.

They rely on answers supplied by the State to a demand for a bill of particulars, and the transcript of the testimony taken at an in camera hearing for the fixing of bail in the case of defendant Robert Troy.

The facts which resulted in the murder indictment were these:

On November 7, 1968, while the bank was open to business, three men, who appeared suspicious to a vice-president, looking through an outside window, entered the bank. Unknown to them, he "hit" the alarm button. As they entered they drew revolvers and ordered him away from his desk. Two of the defendants leaped over a counter and herded the

tellers and officers into the back room. Meanwhile, police officer John Obuchowski was in the police station when the alarm sounded there. He proceeded to the bank, alone. Upon arriving there his attention was called to two armed men who were walking toward the front door. He took a position facing the front door and pointed his shotgun toward that door. He saw a man walk out the door carrying a bag and shouted "Halt!" the man turned and ran back into the bank. At this point a woman, apparently a customer, was approaching the bank and the officer waved her away. Then another policeman arrived and was told by Obuchowski to watch the drive-in window because from that spot he was an easy target for anyone within the bank. The front door opened again, a man in a white shirt came out, apparently saw the police officer and ran back although he had also been warned to halt. The front door opened again and a man was walking in bent over position in front of one of the defendants who had a drawn gun. Obuchowski shouted "Halt!" but the first man kept coming. The officer fired his weapon and struck the first man, but before he could shoot the armed defendant the latter returned to the inside of the bank. Obuchowski identified the armed defendant as Robert Troy. The person who was shot and fatally wounded was Douglas Tyler, a bank official. His wrists were handcuffed behind his back and a coat had been thrown over his shoulders. Statements of witnesses whose names were furnished defendants in the bill of particulars definitely and unequivocally indicated that one of the defendants ordered decedent to go with him, and this command was given shortly before they heard the shotgun blast. After the killing and the arrival of more police, defendants meekly surrendered.

Defendants contend that since the death of the bank official was caused by a policeman's bullet, a charge of murder against them has no basis in law. The State does not agree and argues that while our statutes on murder would mark this a first-degree case, even though the lethal weapon was fired by the police officer, another aspect of the case, namely,

defendants' use of decedent as a shield in attempting to escape, would justify a murder conviction.

Pennsylvania and California have had occasion in recent years to pass upon somewhat similar situations. Each has concluded that under its statutes covering murder it is necessary, in order to apply the felony murder doctrine, to show that the conduct causing death was in the furtherance of the design to commit a felony, and death must be a consequence of the felony and not merely coincidental. Commonwealth v. Redline, 391 Pa. 486, 137 A. 2 d 472 (Pa Sup. Ct. 1958). In People v. Washington, 62 Cal. 2 d 777, 44 Cal. Rptr. 442, 402 P. 2 d 130 (1965), the California Supreme Court held that for a defendant to be guilty of murder under the felony murder rule, the act of killing must be committed by defendant or his accomplice acting in furtherance of their common design.

Both of the cited cases arose out of a killing of a co-felon by a victim of the robbery. The present case involves the killing of an innocent person by a police officer who was called to the scene to apprehend the felons who were in the course of perpetrating a robbery.

While California has a statute defining first degree murder which is similar to ours, their definition of murder is dissimilar. California's murder statute, Penal Code, ยง 187, as it read when Washington, supra, was decided, stated:

"Murder is the unlawful killing of a human being, with malice aforethought."

Pennsylvania has no statutory definition of murder; murder is founded upon the common law and includes the felony-murder concept. United States ex rel. ...

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