State v. Close

• Decision Date: 03 February 1930
• Docket Number: No. A-4.,A-4.
• Parties: STATE v. CLOSE.
• Court: New Jersey Supreme Court

148 A. 764

STATE

v. CLOSE.

No. A-4.

Court of Errors and Appeals of New Jersey.

Feb. 3, 1930.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Union County.

Henry Campbell Close, alias H. Colin Campbell, alias Richard M. Campbell, alias Richard Morton Campbell, was convicted of murder in the first degree, without recommendation, and he brings error. Affirmed.

Francis A. Gordon, of Elizabeth, for plaintiff in error.

Abe J. David, Prosecutor, and Walter C. Tenney, Asst. Prosecutor of the Pleas, both of Elizabeth, for the State.

WALKER, Chancellor. The plaintiff-inerror was convicted in the Union oyer and terminer of murder in the first degree without recommendation, and sentenced to death. He brings error into this court and removes here the entire record of proceedings had upon the trial of the cause, together with the bill of exceptions signed and sealed.

The brief on behalf of the defendant-inerror starts with the assertion that "the facts in the case are set forth in the brief filed on behalf of the plaintiff-inerror in this cause under the headings of Facts and Defenses, and the State does not deem it necessary to repeat those facts in this brief."

This, in effect, is a statement that the facta as set forth in the brief of the plaintiff-inerror are true. And what the parties state as the facts of the case the court is willing to accept. Taken from the brief of the plaintiff-inerror, they are as follows:

"Facts.

"Henry Colin Campbell, age sixty-one, married, and the father of three children, was indicted May 14, 1929, for the murder of Mildred Mowry (also known as Parmelia Elizabeth Mowry). On February 23, 1929, about 5:30 a. m., a woman's body was found in flames on a public highway known as Springfield Avenue, Cranford, New Jersey. In April, 1929, the body was identified as that of a Mrs. Benjamin Mowry, age about fifty-nine, a nurse of Greenville, Pennsylvania, who had been married to Campbell August 28, 1928. April 11, 1929, Campbell signed a typed statement at the Union County Prosecutor's office, wherein he admitted shooting Mrs. Mowry in the head and then pouring gasoline over her and setting her on fire. The statement contained the following:

"'There was nothing between us that prompted me to do this except for the reason that I could not maintain two establishments.

"'I did not intend to marry this woman originally, but I married her thinking it might relieve me of some of my financial difficulties. I had been in financial difficulties for the past two years or more.'"

It should be remarked that the statement concludes:

"I am making this statement voluntarily and freely and without any promises of any kind or any threats.

"Henry Colin Campbell."

Campbell is the name he certified was his; he so signed the statement and is called by that name throughout the case.

Evidence was offered for the defence, and witnesses for the State were cross-examined in an effort to establish the mental state of the accused at the time of the shooting to prove that the homicide lacked premeditation and deliberation, and therefore the crime was not above second degree murder. Insanity was not the defense.

Counsel for the plaintiff-inerror in his brief says that assuming the defendant entertained in his mind a design to kill, the manner of the execution dispels the conclusion that the intent ripened into design as the result of deliberation. There is no dispute but that the statement, which was a confession, was voluntary, the argument being that even it did not show a design on the part of the defendant to kill the deceased.

The jury had before them all the facts, including the statement, and their judgment in finding the defendant guilty of murder in the first degree was that he did kill and murder the deceased with wilfulness, deliberation and premeditation. The statement itself sufficiently indicates it and that, read in connection with all of the testimony in the case, overwhelmingly proves it; and that beyond any reasonable doubt.

The plaintiff-inerror files thirty-two assignments of error and thirty-two causes for reversal, the latter being an exact duplication of the former; and argues them under the following heads: (1) The entire evidence showed lack of premeditation and deliberation; which is subdivided into (a) Worry, (b) Drugs, (c) Bodily Disease, (d) Want of Sleep and Rest; (2) As to the crime itself; (3) As to the gun; (4) As to the can of gasoline; (5) There was no deliberation; (6) The verdict was against the weight of the evidence; (7) Rulings as to testimony; (8) As to tablets; (9) Requests to charge.

The burden of the defense made by the plaintiff-inerror and practically the only defense exploited throughout the case is the prostration of the mind of the defendant to that degree which rendered it incapable of forming the deliberate intention to commit murder. Most of the cases in this state on this question are those of drunkenness. But drunkenness is not the only factor which prostrates the mind, for, as stated by this court in Wilson v. State, 60 N. J. Law, 171, at page 184, 37 A. 954, 958, 38 A. 428: "If, by law, deliberation and premeditation are essential elements of the crime, and by reason of drunkenness or any other cause it appears that the prisoner's mental state is such that he is incapable of such deliberation and premeditation, then the crime has not been committed."

Where a defendant, as here, has been indicted for murder, the law of the Wilson Case applies as to degree. See, also, State v. Martin, 102 N. J. Law, 388, 402, 132 A. 93. It will be observed that this defendant does not plead prostration of mental faculties by reason of intoxication, but by reason of other matters, as already stated.

(1) As to the assertion that the entire evidence showed lack of premeditation and deliberation. This of course is a general head and includes all the testimony. He discusses it under subdivisions, as above stated, (a) Worry: The assertion is that defendant was so very much worried because he had all his money where he could not get any of it out; that his health began to fail after he began to worry about money and he had terrible headaches, lost weight and the veins would stand out on his forehead; lost money he had invested; was tricked in trade; corresponded with matrimonial agencies (notwithstanding he had been married for about fifteen years): that he did not intend to marry anyone (nor should he); tried to get people to finance him, they thought he was too old and would not make a success. This is a fair sample of what is alleged; (c) Drugs: He took something for headaches after he lost his health, first not frequently, then oftener; he used codein tablets; was taking a medicine to make him sleep, took bromide and chloral; Jail Warden Armstrong said he always complained of headaches; (d) Bodily disease: The jail physician, Dr. Blythe, found him suffering from a chronic poor heart, chronic bronchitis, chronic bladder condition, marked hypertropy or enlargement of prostate gland of a chronic nature; also pyorrhea condition fairly severe; had pain in the heart region; had more or less pain all the time in his bladder; pyorrhea might cause infection in other parts, has a hernia; (e) Want of sleep and rest: It is asserted that the mental state of the accused at the time of the homicide did not show premeditation and deliberation.

The showing of premeditation and deliberation can only arise from the condition of the mind, and no one knows of that condition except as it appears to others, and also the plaintiff-inerror himself. His say-so certainly does not show any such thing as that his mental state was such as not to indicate premeditation and deliberation. Take his own statement:

"We got to Cranford between three and four o'clock in the morning. I didn't know what to do with myself or her. She wanted me to take her somewheres where we could go to bed. I didn't know where to go or what to do. She got kind of cold and drowsy in the car. I made up my mind there was no way out of it but simply to get rid of her. There was only one seat in the car, except the rumble seat. I then shot her. * * * She was sitting in the front seat at the time. She was dozing, she was not sleeping. I held the gun up over her head and fired one shot. It went in the top of her head. She had a hat on. I then started up the car and drove about three or four hundred yards, turned into the other road, and decided I ought to get rid of her. I drove the three or four hundred yards because I didn't know what to do. I again stopped and dragged her out of the car. I threw a lot of gasoline over her and set fire to her with a match. I got the gasoline from the rumble seat of my car. I kept it there in case I ran out of gas when out driving. Before this I realized it was going to be daylight before long when I got to Cranford and I wanted to get home and I couldn't take her anywheres with me.

"There was nothing between us that prompted me to do this except for the reason that I could not maintain two establishments."

Let it be distinctly remembered, that this murderer did not say when he shot the woman—who, notwithstanding he was a married man, he had bigamously married, deceived and possessed himself of much of her money, for which purpose he married her—that he was suffering from worry, drugs, disease, want of sleep and rest, or make any other excuse whatsoever; but after shooting the woman he stopped and dragged her out of the car and threw a lot of gasoline over her and set fire to her, because he realized that it was going to be daylight before long, and he wanted to get home and could not take her anywhere with him. Could anything apparently be much more willful, deliberate and premeditated? This is practically all we have as to the facts surrounding the immediate killing. And how many men suffer from worry, the taking of drugs, bodily disease, want of sleep and rest. Their name is...