Kohl v. State

• Decision Date: 02 March 1897
• Citation: 36 A. 931,59 N.J.L. 445
• Parties: KOHL v. STATE.
• Court: New Jersey Supreme Court

36 A. 931

59 N.J.L. 445

KOHL

v. STATE.

Court of Errors and Appeals of New Jersey.

March 2, 1897.

(Syllabus by the Court.)

Error to court of oyer and terminer, Essex county; before Justice Depue.

Henry Kohl was convicted of murder, and brings error. Reversed.

Thomas S. Henry and Chauncey H. Beasley, for plaintiff in error.

Elvin W. Crane, for the State.

DIXON, J. The defendant having been convicted in the Essex oyer and terminer of murder of the first degree, perpetrated by killing Joseph Preinel, has brought the entire record of the proceedings upon the trial to this court, under the act of May 9, 1894 (Gen. St. p. 1154). According to that statute, it is now our duty to determine "from the record whether the defendant has suffered manifest wrong or injury, by rejection of testimony, or in the charge made to the jury, or in the denial of any matter by the court which was a matter of discretion, or upon the evidence adduced upon the trial," and, if such wrong or injury appears, to order a new trial. After a careful investigation of the record, we find no fault in it, except that the evidence does not justify the verdict. To warrant a conviction of crime, the testimony should prove the guilt of the accused beyond a reasonable doubt. If it fails to do this,—i. e. if it be of such a nature that, when fully and fairly considered, it will not satisfy any thoughtful mind, beyond reasonable doubt, of the guilt of the accused then a conviction does manifest wrong, according to our system of administering criminal law. The jurors compose the appropriate tribunal for the determination of controverted questions of fact; but, in a civil cause, they cannot justly find a verdict for the plaintiff without evidence capable of leading a prudent person to believe in the plaintiff's claim, and, in a criminal cause, they cannot justly find a verdict for the state upon evidence which, viewed in any rational aspect must leave reasonable doubt of guilt in every considerate mind. Against such verdicts the party aggrieved can, by the common law, appeal to the trial court for a new trial, and, under the statute above cited, such an appeal can now be made in criminal causes to the appellate tribunal. I proceed, therefore, to examine the evidence.

Joseph Preinel, an orphan, 21 years old, lived at No. 545 Eighteenth street, Newark, in the family of his uncle, the defendant's father. His occupation was selling newspapers and taking care of his uncle's cows. On June 14, 1894 (Thursday), his uncle sailed for Europe, and on that day Preinel removed his trunk to the defendant's house in the same neighborhood, intending to sleep there but to continue boarding in his uncle's family. The defendant was 22 years old, a mason by trade, and lived with his wife and child. On Friday. June 15th, Preinel, the defendant, and one Schweitzer, a witness for the state, were together drinking beer in a vacant lot near the defendant's house until about 7 o'clock in the evening, when Preinel and the defendant went home, the latter saying that he was going to a masons' union that night. Shortly afterwards Preinel and the defendant sat down to tea in the house of defendant's father. The defendant left that house about half past 8 o'clock, and about 20 minutes later Preinel went out. About 9 o'clock they were seen together near by, on the corner of Eighteenth street and Sixteenth avenue, where the defendant sent a boy to Kunzman's saloon for some whisky, of which Preinel took a drink. About 10 o'clock the defendant was at the masons' meeting, 255 Court street, about half an hour's walk from Eighteenth street and Sixteenth avenue, where he drank some beer. The testimony is in some conflict as to the hour when he was there, but the witnesses agree that he was there just before the meeting organized, and the testimony of the secretary, who says it organized after 10 o'clock, is the most trustworthy, because of his official position, and because of the reasons which he gives for knowing it was late. This harmonizes, also, with the evidence as to the time of the defendant's presence elsewhere. About 1 o'clock on Saturday morning the defendant went into Blessing's bakeshop, two doors from his own home, and bought some rolls, and, when asked why he was there so early, said he had been at his union, and that he could not sleep, the mosquitoes were stinging him so much. From that time on his whereabouts is fully shown. About 11 o'clock on Saturday morning Preinel's body was found by two young men in Shinder's creek, on the line of the Newark & New York Railroad, about five miles from the defendant's house, towards New York. It lay in the creek, face downward, with a large stone resting upon the back. The skull was broken, and a strap was drawn tight around the neck. Near by, in the creek, were four or five railroad coupling pins, which were fastened together and bore evidence of having been tied to the strap. There is no doubt he had been murdered, although it was at first regarded as a case of suicide, and as such the county physician's certificate, made on Sunday or Monday following, described it. News of the finding of the body was brought by the young men to the police station in Newark at 12:10 o'clock, noon, but the body was not identified as that of Preinel until 6:45 o'clock on Sunday morning, when the defendant's mother saw it at the morgue.

Under these circumstances the burden resting on the state was to prove that, between 10 o'clock on Friday night and 1 o'clock on Saturday morning, three hours of time, the defendant had met Preinel, gone to Shinder's creek, five miles away, murdered Preinel, and disposed of his body in the manner indicated, and returned five miles to Blessing's bakery. To support this burden, the state relied on two sorts of evidence: (1) Evidence that the strap around Preinel's neck had belonged to the defendant; (2) evidence of the defendant's declarations.

Of the first sort it is enough to say that the evidence consists of the opinion of two witnesses that the strap is like one worn by the defendant. Against this is the fact that the strap is a common one, and also the testimony of four or five witnesses, who had better means of observation than the others, that a very different strap, which was taken from the defendant's waist at the time of his arrest, was the one worn by him for some months before. The preponderance of proof is decidedly against the state on this sign of guilt.

The other species of evidence needs more consideration. After the defendant left Blessing's bakery, he went, about 2:30 o'clock that morning, to Eckert's bakeshop, about a block away, to help the bakers, Bankert and Schweitzer, as he had agreed the evening before to do. They swear he told them that he had been at the masons' meeting, that a keg of beer had been set up there, and that he had not got home till 2 o'clock. After they had made the dough, the defendant went out, saying he was going home, but would come back, and when he returned he told the bakers that his cousin Joe had not come home, and he did not know where he was. The defendant stayed there about an hour making pretzels, and more than once spoke of his cousin's not being home. At the suggestion of one of them he went to see whether Preinel had not slept in the stable. One of the bakers, Reuple, a lad then 16 years old, swears that, about 5 o'clock, he asked the defendant why he had not gone fishing that morning with Mr. Eckert, as he had promised, and the defendant replied that he was out, down in the creek with Joe Preinel, and that Joe was killed. In giving this conversation a second time, the witness said that defendant told him Joe's body was down in the creek, and that Joe was killed, and to this form of expression he adhered. In the remark sworn to by Bankert and Schweitzer there is no reference to Preinel's death, and its whole force lies in the fact that on the preceding night a keg of beer had not been set up at the masons' meeting, and so, if the witnesses are right as to the date, the defendant gave a false account of his whereabouts during the critical hours. But it appears that the defendant was at large until July 9th, when he was arrested on his wife's complaint for assault and battery, and that he was not charged with this murder till near August 1st; that in the latter part of June, or early in July, a keg of beer had been set up at the masons' meeting, which was regularly held over a beer saloon; and that the defendant frequently worked in the bakeshop with these witnesses early in the morning. It is, therefore, easy to believe that the remark was made on some other morning, the witnesses being mistaken only as to the date. With a conversation so indifferent at the time, and not recalled for weeks afterwards, such a mistake is not only possible, but highly probable. The words sworn to by Reuple are more significant; but, in the form in which they were persistently given by him, the time of their utterance is all-important. For the defendant to say, on Saturday morning, that Joe's body was in the creek, and he had been killed, would be clear evidence of his guilt, because no one except the murderer then knew that; for him to say the same thing on Sunday morning would be no sign of guilt whatever, because then many innocent persons knew it. We must, therefore, consider carefully whether the witness is trustworthy as to time. He says this remark was made to him about half an hour before the defendant spoke of Joe's not being home, and that it was made about 5 o'clock; the other bakers say he spoke about Joe's not being home about 3 o'clock. The remark sworn to by Reuple, if made on Saturday, was a startling one, and inconsistent with the...