Roesel v. State

• Citation: 62 N.J.L. 216,41 A. 408
• Parties: ROESEL v. STATE.
• Decision Date: 28 September 1898
• Court: United States State Supreme Court (New Jersey)

41 A. 408

62 N.J.L. 216

ROESEL

v. STATE.

Court of Errors and Appeals of New Jersey.

Sept. 28, 1898.

(Syllabus by the Court.)

Error to court of oyer and terminer, Union county; before Justice Van Syckel.

Louis Roesel and George Manshande were indicted for the murder of James C. Pitts early in the evening of the 9th of September, 1897, at Summit, in the county of Union. Both of the accused pleaded not guilty. On the application of the state and of Manshande, the court made an order that the accused be tried separately. Exception was taken to this order of the court, and error assigned thereon. Roesel was put upon trial under the indictment at the term of May, 1898, and he will be called the "prisoner" in this opinion. Manshande, by his own consent, became a witness for the state. Roesel, by the verdict of the Jury, was found guilty of murder in the first degree. A writ of error was sued out May 25, 1898. The writ brought up the record of the entire proceedings at the trial, and was argued upon the errors assigned thereon. Affirmed.

Frank Bergen and Edward Nugent, for plaintiff in error.

Frederick C. Marsh and Nicholas C. J. English, for the State.

DEPUE, J. (after stating the facts as above). The error assigned on the order of the court directing that the two persons accused should be tried separately requires no discussion. The power of the court to order several accused charged in the same indictment to be tried sepatately is well settled. The counsel of the plaintiff in error made no point on that exception, either in their briefs or on the oral argument.

Manshande, at the trial, testified that Roesel told him that Pitts had a large amount of money in his house, and urged him to go with him and rob the house; that, on the 9th of September, Roesel purchased two tickets on the Delaware, Lackawana & Western Railroad, from New York to Summit; that they rode on these tickets to Summit; that they walked from the Summit station to Pitts' residence, and went into a barn near by, and waited until some one who was in Pitts' house went away. Manshande further testified that, after the visitor went away, he and Roesel went out of the barn to carry out their purpose of robbery; that Roesel picked up a piece of wood, called a "gambrel," and they both went to the door of Pitts' house; and, when Pitts opened the door, Roesel struck him the blow on the head which caused his death. Manshande also testified that, before he and Roesel left New York, they procured two masks and two pieces of rope,—the masks to conceal their faces, and the rope to tie the two occupants of the house. There was ample testimony to confirm the testimony of Manshande. The railroad tickets which he says Roesel purchased were found soon after the murder on or near the premises of the deceased, and the ticket agent who sold them identified them as the tickets sold to Roesel. The conductor on the railroad also identified the tickets by his punch mark. The date on the tickets showed that they had been issued on the 9th of September. The deceased was found dead, lying upon his back, upon the floor of the kitchen of the house, with a wound in his forehead, and blood under his head. Mary Davis, who was the only other inmate of the house, testified that she was awakened by a noise while lying on a lounge in the same room; and when she arose, and went towards where the body of Pitts lay, a small man with a mask on his face struck her two severe blows, after which she made her way to a neighbor's house, and gave the alarm. Woodruff, to whose house Mary went, testified that he reached the house of the deceased about 8 o'clock in the evening, and found the deceased lying on the floor, dead. A mask made of black woolen with green lining inside was found the next morning at the north corner of the barn, and a piece of German newspaper, published in New York, of the date of September 9th. A rope about 25 feet long was found on adjoining premises, alongside of the road, the morning after the murder.

The prisoner was a competent witness, and was sworn in his own behalf. He did not deny the matters of fact testified to by Manshande, except that he denied that he had struck the blow; nor did he contradict any of the facts testified to by the other witnesses in the case. The testimony of Manshande is strongly confirmed by the failure of the defendant to controvert by his testimony the facts testified to by Manshande. After testifying to his age and birthplace, the entire testimony of the prisoner with regard to the charge on which he was upon trial is as follows: "Q. You heard the testimony of George Manshande, did you? A. I did, sir. Q. Did you strike Mr. Pitts— A I didn't understand. Q. Wait. Did you strike Mr. Pitts— A. No, sir. Q. Wait a minute,—with a club or any other weapon, on the evening of September 9th last? A. No, sir. Q. Or at any other time? A. No, sir." The prisoner was then handed over to the prosecutor for cross-examination, and all inquiry by the prosecutor touching the connection of the prisoner with the preparation for and the execution of this crime was objected to by the counsel of the prisoner, and excluded by the court, on the ground that it was not a cross-examination.

The prisoner at the trial, so far as his connection with the commission of this crime was concerned, put himself upon the fact that the blow that killed the deceased was not struck by him. On this evidence the contention was at the trial, and in the assignments of error here is, that, under those circumstances, the prisoner was not guilty of murder. The trial judge charged the jury thaj if they found from the evidence that Manshande and Roesel agreed to go to the house of Pitts for the purpose of robbing the house, and that they went there on the 9th of September in pursuance of that agreement and purpose, and that they were together at the door of Pitts' house for that purpose, and, while there together, Pitts received from one of these men a blow that caused his death, they are both guilty of murder in the first degree, no matter which one struck the blow.

The sixty-seventh section of the crimes act enacts "that if any person or persons in committing or attempting to commit sodomy, rape, arson, robbery or burglary, or any unlawful act against the peace of this state, of which the probable consequence may be bloodshed, shall kill another, or if the death of any one shall ensue from the committing or attempting to commit any such crime or act as aforesaid, * * * then such person or persons so killing as aforesaid, on conviction, shall be adjudged to be guilty of murder." 1 Gen. St. p. 1062. Section 271 of the crimes act provides "that all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in perpetrating or attempting to perpetrate any arson, rape, sodomy, robbery or burglary, shall be deemed murder of the first degree." 1 Gen. St. p. 1100. By the common law, all who were present aiding and abetting in a felony are principals. Coal-Heavers' Case. 1 Leach, 66 Fost. Crown Law, 428. With regard to what will constitute such a presence as will render a man a principal, it is said by Mr. Justice Foster that if several persons set out together or in small parties upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him, some to commit the fact, others to watch at proper distances to prevent a surprise, or to favor, if need be, the escape of those who are immediately engaged, they are all, provided the fact be committed, present at it. Fost. Crown Law, 350. Thus, where A. waits under a window while B. steals articles in the house, which he throws through the window to A., the latter is a principal in the offense-Owen's Case, Moody, Cr. Cas. 96; Rose. Cr. Ev. 213. "If divers persons come in one company to do any unlawful thing, as to kill, rob, or beat a man, or to commit a riot, or to do any other trespass, and one of them, in doing thereof, kill a man, this shall be adjudged murder in them all that are present of that party, abetting him and consenting to the act or ready to aid him, although they did but look on." 1 Hale, P. C. 441. Roesel and Manshande were engaged in a common purpose,—the robbery of the deceased. Both were principals, and equally guilty for the acts done by either; and, if death ensued from the committing or attempting to commit such a crime, the offense was murder, whether the blow was struck by the one or the other. And, by section 271, murder committed in perpetrating or attempting to perpetrate the crime designed by both these parties is made murder of the first degree. The charge of the trial court that, if the accused was found guilty, he should be convicted of murder of the first degree, was correct.

Error is assigned also on an exception taken to the admission of the testimony of John Keron. Keron was county detective, and had charge of the accused as a prisoner. His official position was disclosed and was well known to the prisoner. He first saw the prisoner in the Richmond county jail, Staten Island, on the 6th of October. He afterwards saw him in the Union county jail, and had conversations with him. The first of these conversations was on the 5th of January, 1898, in the presence of Mr. Blore, the warden, Chief of Police Stewart, Manshande, and Smith, the deputy warden, all of whom were public officers except Manshande and Roesel. Before the witness was allowed to testify to anything that the prisoner said, he was required by the court to detail the circumstances under which those conversations took place, with a view of ascertaining whether, in fact, the declarations of the prisoner were made under such circumstances as would allow them to be given in evidence. On such preliminary examination, Keron testified that he told the prisoner he need...