Defendant moves before trial for dismissal of count I of Indictment No. 790-73 charging him with the felony murder of one Charles Williams on February 10, 1974. It is defendant's position that as a matter of law he cannot be charged with the murder of Williams, whose death occurred as a result of a wound inflicted by another, one Solomon Richardson, one of the intended victims. Williams and Suit were engaged in the commission of an armed robbery upon Richardson, among others, when Richardson shot and fatally wounded Williams and injured defendant Suit. The State argues that under N.J.S.A. 2A:113-1, which the State submits adopts the total common law felony-murder doctrine, Suit is liable for murder, since Williams' demise occurred during the commission of one of the crimes outlined by the statute. For purposes of deciding this motion, defendant and the State have stipulated to the following facts:
On Sunday, February 10, 1974, at about 5:30 P.M. defendant Joseph Suit together with Charles Williams entered
an apartment located at 1215 Lake Avenue in the City of Asbury Park, New Jersey. Present in the apartment were the tenant, Lew Marsh, and three visitors-Estelle Coleman, Clarence Vaugh and Solomon Richardson. After a period of conversation Williams pulled out a 22-cal. pistol, pointed it at Richardson and the others, and then robbed them. During the course of the armed robbery Suit was located near the inside of the door of the apartment. While Williams was placing a bullet into his own gun, Richardson produced his own gun, a 38-cal. pistol which had been hidden on his person. Richardson shot and killed Williams and then shot and wounded Suit. Coleman, Richardson and Vaugh were later found with two guns, namely, the pistol used by Williams and the gun used by Richardson. For purposes of this motion it is stipulated that defendant Suit acted as an accomplice to the armed robbery, perpetrated by Williams. The State will rely exclusively upon the felony-murder doctrine in its prosecution of defendant Suit.
The issue squarely before this court is whether under N.J.S.A. 2A:113-1 a surviving participant in an armed robbery can be held liable for murder where his coparticipant was killed as a result of a shot fired by the intended victim in an apparent attempt to abort the robbery.
Since dismissal is a severe remedy, it is defendant's burden to offer this court "the clearest and plainest" of grounds to justify such action. State v. Welek, 10 N.J. 355 (1952). Counsel for defendant and for the State agree there is no controlling New Jersey authority on point with the particular fact pattern at bar. Thus, an examination of our statute in light of its interpretation by New Jersey courts, and an examination of the statutes and case law of our surrounding jurisdictions, is essential to a determination of this matter.
N.J.S.A. 2A:113-1 provides in pertinent part:
If any person, in committing or attempting to commit * * * robbery * * * kills another, or if the death of anyone ensues from the
committing or attempting to commit such crime or act; * * * then such person so killing is guilty of murder.
The degree of murder is set forth in N.J.S.A. 2A:113-2 as follows:
Murder * * * which is committed in perpetrating or attempting to perpetrate . . . robbery * * * is murder in the first degree.
The prosecutor argues that under the above-cited statutes any death which occurs during the commission of a felony is imputable to the perpetrator as murder. The State relies on State v. Kress, 105 N.J. Super. 514 (Law Div. 1969), and points to that part of the opinion which discusses and interprets the murder statute. The factual pattern in Kress is different and distinguishable. Kress was a bail hearing where the court considered the propriety of a murder indictment against a defendant who, in effect, used a bank official as a shield in attempting to escape from a bank after committing an armed robbery. The police, while apprehending the perpetrators, fatally wounded the official. Defendant there argued that he could not be held liable for murder since the police fired the fatal shots. This argument was based on an interpretation of N.J.S.A. 2A:113-1 which held that the phrase "then such person so killing" required that liability must be predicated on the person who in fact fired the fatal shot. Although a portion of the statute speaks in terms of "if the death of anyone ensues from the committing" (hereinafter referred to as the ensues clause), defendant argued that that provision is incomplete and of no effect lest it be coupled with the concluding phrase placing liability on the person acting. The Kress court rejected this argument and found that the ensues clause could stand alone, without regard to the closing provision, otherwise the phrase would be mere surplusage. However, the Kress court also noted that the facts involved indicated defendant used decedent as a shield, thus forcing decedent into a position likely to cause his death. Kress, supra, 105 N.J. Super.
at 521-522. The State submits that Kress is illustrative of the wide sweep of New ...