State v. Burrell, 169.

• Decision Date: 02 February 1934
• Docket Number: No. 169.,169.
• Parties: STATE v. BURRELL.
• Court: New Jersey Supreme Court

170 A. 843

STATE

v. BURRELL.

No. 169.

Court of Errors and Appeals of New Jersey.

Feb. 2, 1934.

Syllabus by the Court.

1. Evidence examined, and held that the verdict of murder in the first degree was not against the weight of the evidence.

2. In a murder trial, the physician called by the state testified that he examined the body of the decedent and found that she had been dead about four hours. He was then asked on cross-examination by the defendant what a little girl had said to him at the time in the presence of the defendant. That question the state objected to and it was excluded. Held, since what the girl said was not, and was not contended to be, a part of the res gestae, and since no foundation had been laid for impeachment of the girl (who had not testified), the question was properly excluded.

3. The admission in evidence in a murder trial of photographs of the body of the decedent, taken shortly after death and before the autopsy and proved to be correct representations, was objected to, because they tended to prejudice the minds of the jury against the defendant. Held, that, even if this were true, it did not render the admission of such photographs illegal.

4. Where a question put by the defendant to the state's witness on cross-examination related to a matter concerning which the witness had not been interrogated upon his direct examination, its exclusion does not justify a reversal, where no reason was stated to the court as to its competency.

5. No prejudicial error results from sustaining the objection to a question put to the state's witness on cross-examination in a murder case, where later during his examination he is permitted to testify to the matter sought to be proved.

6. A conviction in a murder case will not be reversed for an error in the exclusion of evidence which was not prejudicial to the defendant.

7. In a murder trial, a witness for the state, who had knowledge of the killing, admitted on cross-examination that he did not at once tell the people who came to the house who did it. The state on redirect inquired, Why not? The witness answered, "Because he (defendant) had us scared, and told us that if we said anything he would kill us." Held, that the state's question was proper, and the defendant's motion to strike out the answer was properly denied.

8. In a murder case, where, on review, the defendant contends that questions were improperly excluded, and it appears that the same questions had been theretofore asked by the same counsel of the same witness and were answered responsively, the exclusion of the questions is not prejudicial to the defendant, and will not lead to a reversal.

9. A question on cross-examination of the state's witness was answered responsively before it was objected to, and, no motion being made to strike out the answer, it was permitted to stand. Held, that, the defendant not being prejudiced, a reversal is not justified.

10. In a criminal case brought up by writ of error, whether on bills of exceptions or under sections 138 and 137 of the Criminal Procedure Act (2 Comp. St. 1910, pp. 1863, 1866, §§ 136, 137), or both, the assignments of error and causes for reversal should specifically point out the judicial error complained of, and that requirement is not complied with by an assignment of error and cause for reversal saying only that "the trial court erred in improperly permitting the witness, Raffaele Capodanno, a detective of the Newark Police Department, called for rebuttal, to reiterate the testimony of the State's witnesses, George McCraw, Tessie McCraw and Florence McCraw."

11. In a criminal case a statement made in writing by the defendant to the police, and signed by the defendant after it has been read to him, and after he had read it and had made a correction in it, was properly admitted in evidence for the state over an objection that it did not contain all that he had said.

12. A judgment in a murder case will not be reversed because of the refusal of requests to charge, where the principles of law therein were correctly and fully presented in the charge given.

13. Where requests have been correctly and fully covered in substance and effect in the charge given, such instructions need not be repeated in language chosen by the defendant 14. Where, in a murder case, the trial judge has properly defined the degrees of crime embraced in the indictment, and the elements thereof, and of the defense interposed, and has instructed the jury accurately as to the true rule of reasonable doubt, and that it applies to the whole case and to each of the crimes embraced in the indictment, he is not bound to charge that the jury must be convinced beyond a reasonable doubt of any one or more selected material facts constituting the crime nor to subdivide his instruction and charge separately as to each of the elements composing the crime.

Error to Court of Oyer and Terminer, Essex County.

Melroyal Burrell was convicted of murder in the first degree, and he brings error.

Affirmed.

J. Victor D'Aloia, of Newark, for plaintiff in error.

William A. Wachenfield, Prosecutor of the Pleas, and Joseph E. Conlon, Asst. Prosecutor of the Pleas, both of Newark, for the State.

TRENCHARD, Justice.

Melroyal Burrell, the plaintiff in error (hereafter called the defendant), was convicted in the Essex oyer and terminer of murder in the first degree without any recommendation of life imprisonment, on an indictment for the murder of Bella McCraw, and was sentenced to death. He brings up the entire record, and specifies causes for reversal, and also assigns errors on exceptions.

We deal first with defendant's contention that the verdict was against the weight of the evidence.

The state's evidence reasonably tended to show the following matters of fact: The decedent lived in an apartment with her husband and four children, George, 17 years of age; Florence, 15; Tessie, 14; and another, an infant, 3 years old. For 2 years prior to the tragedy defendant lived with the family as a boarder. Decedent's husband was steadily employed, but defendant had not worked for some months prior to the day of the killing, and was practically supported by the family. Defendant from time to time had sexual intercourse with the decedent without her husband's knowledge. Some time prior to the tragedy, the situation became unbearable to the decedent, and she wished to get rid of defendant and on one occasion she called the police. This the defendant resented, having no money and no place to go, and he made up his mind to kill her. After frequent quarrels, there was a quarrel on the day of the tragedy. Defendant locked the doors and terrorized the children, and by means of threats endeavored to get the children to distract the decedent's attention while he hit her with a monkey wrench. Some of the children refused, but Florence, the adopted daughter, after first refusing, said that she would do what he wanted. She engaged decedent's attention, and the defendant approached with the monkey wrench in his hand and struck decedent on the back of the head. She did not fall immediately, and defendant grabbed her and threw her on the bed and got on top of her. She was bleeding profusely and struggled desperately, but he "straddled her," and with his right hand on her throat he choked her for "almost half an hour" until she was dead. Defendant then pulled down the window shades, and, with the aid of the children, washed the blood from the walls and carpet, gave the rags and bed linen to George, and instructed him to burn them in the yard; and George did burn some of firm, and some were produced at the trial. Defendant gave George the monkey wrench and told him to hide it in the yard. George threw it in the alley, and it was found by the police. Defendant took off his bloody shirt and gave it to George to burn, and put on a clean shirt. Then defendant went to a drug store and got alcohol with which he rubbed decedent's throat in an endeavor to remove evidence of strangulation. He changed the clothes of the decedent to remove the evidence of blood and violence. He arranged the head of decedent so that her chin rested on her chest. He then told the children, under a threat of death, that, if anybody asked how she died, they must say that a tall dark man knocked at the door, and that the decedent told him to come in, and she and he went into the bedroom, and later the man went out, and the children went into the room and found her dead. Thereafter defendant cut and filed his finger nails. When the husband returned from his work, defendant told him that decedent died in a fainting spell. A physician was then called who examined the woman's heart and pronounced her dead, and that she had been dead for four hours. Then the undertaker was called in, and, finding evidence of violence, an autopsy was held at which it was determined that death had resulted from manual strangulation.

Such were the matters of facts which the jury, if they saw fit, could and no doubt did find.

The defendant gave various versions of the affair at different times, but his statement made to the police, which was admitted in evidence, confirmed many of the salient features of the state's case. That statement he made after being faced with the statements of the children as to the truth of the essential facts of the state's case, made by them as soon as they ascertained that the defendant was under arrest, and which they reiterated at the trial. The defendant at the trial, while denying parts of his statement to the police, admitted that he had a quarrel with the decedent shortly before the tragedy. He admitted that he struck her in the head with a weapon. He testified that he did that because she had a pistol and threatened to shoot him. But the evidence, taken as a whole, clearly justified the jury in finding the fact to be otherwise, and that such threat, if any there was, had no relation whatsoever to the killing....