State v. Barth
| Decision Date | 10 January 1935 |
| Docket Number | No. 147.,147. |
| Citation | 176 A. 183 |
| Parties | STATE v. BARTH. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
1. Defendant, on trial for murder, committed in attempting a robbery, having testified without objection that after the homicide he suffered from remorse, was properly crossexamined to show that within a month thereafter he had been concerned in five similar robberies.
2. Evidence offered by defendant on trial for murder relating to his "past life and antecedent background" held properly excluded.
3. The evidence to be considered by the jury in a murder case on the question of recommending life imprisonment (P. L. 1919, p. 303 [Comp. St. Supp. 1924, § 52—108]) is the evidence adduced on the question of guilt or Innocence of the murder charged in the indictment.
4. Charge of the court stating the power and duty of the Court of Pardons held correct and responsive to an inquiry by the jury as to "whether life imprisonment really means life Imprisonment."
Error to Court of Oyer and Terminer, Essex County.
Kurt Barth was convicted of murder in the first degree, and he brings error. Affirmed.
Samuel I. Kessler and James L. McKenna, both of Newark for plaintiff in error.
William A. Willchenfeld, Pros, of the Pleas, and Joseph E. Conlon, First Asst. Pros., both of Newark, for the State.
The plaintiff in error was convicted of murder in the first degree without recommendation of life imprisonment, and brings this writ of error. That he was guilty of murder in the first degree was frankly admitted on the argument. Indeed, the defendant tendered a plea of guilty at the outset of the trial. As a common-law plea of guilty, it could not be accepted; the statute forbidding that course. As a plea of non vult, the court in its discretion could accept it; the punishment in such case being imprisonment for life, or as for murder in the second degree. Crimes Act, § 107 P. L. 1917 p. 801 (Comp. St. Supp. 1924, § 52—107). The trial court on objection by the prosecutor refused to accept the plea. We are informed in the brief of, his counsel that "the defendant offered no defense in bar but took the stand and freely and frankly confessed the details of the crime." This may not be absolutely correct, but it does not require detailed analysis. One thing was quite clear: That the defendant sought to avert capital punishment; and to that end the evidence for defendant was mainly directed, in an attempt to obtain from the jury a recommendation of life imprisonment, which by the statute would be controlling on the court. Crimes Act, § 108, P. L. 1919, p. 303 (Comp. St. Supp. 1024, § 52—108). The defendant testified (without objection by the state) to his sorrow and remorse, on realizing that he had killed a man; and the first group of assignments of error and specifications for reversal relates to the cross-examination of the defendant on this phase of the case. Defendant further undertook to testify to various details of his younger life and rearing, many of which the court excluded, and the second group of assignments and specifications relates to rulings on this line of testimony. Finally, the court, in response to a question from the jury, instructed them on the powers and duties of the Court of Pardons, and that instruction is challenged as erroneous.
The circumstances of the crime are short and simple. On April 6, 1934, defendant entered the store of deceased, Julius Friedman, at Bloomfield and attempted a holdup at the muzzle of a revolver in the manner now familiar. There was a struggle, in the course of which Friedman was fatally shot, dying almost at once. Defendant fled without getting any money, but none the less his crime was murder in the first degree. Crimes Act, § 107, P. L. 1917, p. 801, supra (Comp. St. Supp. 1924, § 52—107).
On direct examination defendant testified that after going home he "was broken down, feeling terrible about the whole thing," and that he told one of the police officers he was glad to get it off his chest, to let it come out, that he was responsible for it, and that he was sorry it all happened. He said he got the pistol by mail order from Wisconsin, to take the place of one that he used to play with around the house and which was lost. Another and smaller revolver was in evidence, and this he said he had bought for $5 "from a fellow in the saloon" for no reason except that he liked to play with them. Still on direct, he gave a similar explanation of a set of brass knuckles; testified to taking out driver's licenses under a false name because he was on probation for stealing a car; and charged some stolen license plates against some associates, who borrowed the stolen car that he was using. Cross-examined, he admitted the Wisconsin revolver had been ordered in his sister's name; that he had filed the number of it; that the smaller gun he had gotten from a girl. He repeated his assurances of remorse, "felt bad, but I couldn't do nothing about it." He flatly denied having carried either the Wisconsin gun or the smaller gun after the homicide, and was then asked:
Over objection he testified that Stanley had then used the gun that killed Friedman, defendant being with Stanley and having given him the gun that same night, to use in the stickup:
The cross-examiner went on to elicit admissions that defendant, with one of the guns, had participated in a holdup of a store in Dover on April 24; of a store in Bergenfield on April 27; and with or without a gun himself, of a delicatessen store in Haekensack also on April 27, and another in Bloomfield April 28. He admitted changing license plates on the car. All this was over objections and exceptions. The argument now is that proof of these later and disconnected crimes was improper; and that as defendant had at first denied using the gun after the Friedman murder, that answer closed the legal cross-examination on that point As to this last, we had never understood that a witness giving a wrong answer on cross-examination—in this case, apparently a false one—may not be further questioned with the results of eliciting the true answer; subject of course to the discretionary control of the court. The proof—on cross-examination, be it remembered—of other later and disconnected crimes, was directly relevant to the question which defendant sought and seeks to make what he calls an "issue" in the case, raised by defendant himself, to wit, that though guilty of murder in the first degree, the jury should save him from capital punishment because of his repentance and remorse. It was not a legitimate issue, for reasons presently to be stated; but the testimony having come in without objection, the state, on the natural theory that...
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