State v. Cole

• Decision Date: 29 January 1948
• Docket Number: No. 4.,4.
• Parties: STATE v. COLE et al.
• Court: New Jersey Supreme Court

136 N.J.L. 606

56 A.2d 898

STATE

v.COLE et al.

No. 4.

Court of Errors and Appeals of New Jersey.

Jan. 29, 1948.

COPYRIGHT MATERIAL OMITTED.

Error to Court of Oyer and Terminer, Essex County.

George Cole and George Hicks were convicted of murder in the first degree, without recommendation, and the convictions are brought for review on writs of error. bills of exceptions, and certification of entire record of trial proceedings and on appeal.

Affirmed.

HEHER and COLIE, Justices, and SCHETTINO, Judge, dissenting.

David Green and Robert Carey, Jr., both of Newark, for plaintiff-in-error Cole.

J. Edward Bennett and A. Warren Littman, both of Newark, for plaintiff-in-error Hicks.

E. Minard, Jr., Prosecutor of Pleas, James R. Giuliano and C. William Caruso, Asst. Prosecutors of Pleas, all of Newark, for defendant-in-error Duane.

OLIPHANT, Chancellor.

On the trial of an indictment for murder in the Essex County Court of Oyer and Terminer, the plaintiffs-in-error were convicted of murder in the first degree, without recommendation, and were sentenced to death pursuant to the statute, R.S. 2: 138-1 and 2:138-4, N.J.S.A. Another defendant Harris was also convicted of murder in the first degree with a recommendation, but he has not appealed.

The indictment, in the usual statutory form, charged the plaintiffs-in-error with the killing of one Rudominer and the State offered proof that the killing occurred during the perpetration of a robbery or attempted robbery.

The convictions and judgments below are brought here for review on writs of error, bills of exceptions, and on the certification of the entire record of the trial proceedings, R.S. 2:195-1, 16 N.J.S.A. The judgments are also before the court on appeal pursuant to P.L. 1946, chap. 187, R.S. 2: 195A-1 et seq., N.J.S.A.

The decedent Rudominer died of injuries inflicted by one of three men who apparently came into his drug store at about 8:45 p. m. on September 12, 1946. There were eyewitnesses to some of the events that took place.

A woman said she was passing the store when she saw a Negro behind the counter in the drug store. Sensing something wrong she called to three Negroes, and one of them came over and started with her into the store. She and this man said only two men rushed out of the store at that moment and the other witnesses ran after them but they escaped.

Inside the drug store they found Rudominer bleeding and unconscious on the floor. They called the police. These witnesses were unable to identify the plaintiffs-in-error or to give an adequate description, of the murderers, except to describe the Eisenhower jacket worn by one and a red and black checked shirt worn by the other.

Rudominer was unable to answer any questions for the police and was removed to the hospital where he died the next day without regaining full consciousness. The autopsy established the cause of death as a fractured skull and a cerebral hemmorrhage together with various contusions and linear fractures of the temporal regions. In the opinion of the doctor the injuries resulted from being struck with a blunt instrument or object.

The police found several drawers in back of the counter pulled out, the cigarette case disturbed with cigarettes all around the floor. They also found about $20 around the store and about $900 in the safe which was in the rear.

There is little or no significant proof in the record pointing to the guilt of these particular defendants except their confessions, but there is proof in the record corroborating certain facts in the confessions of the plaintiffs-in-error.

On December 7, 1946 Harris was apprehended with a stolen car. As the result of the questioning of him Cole and Hicks were picked up by the police early the next day. Harris and Hicks gave statements to the police on December 9th relative to certain holdups. Cole gave written statements to the police on December 10th as to other robberies. None of these statements related to the Rudominer killing.

It appears that while Hicks on December 9th admitted taking part in the Rudominer holdup, the first statement with respect thereto was taken from Harris between 1:45 a. m. and 4 a. m., December 10th Similar statements were obtained from Hicks and Cole on the afternoon of that day. That same evening in the presence of the Prosecutor and his assistants, under questioning by Chief Sebold of the Newark Police Department, the prisoners orally repeated substantially the facts already given in their prior confessions. Cole demonstrated how he had knocked Rudominer down and kicked him in the head. Written statements were then taken by the Prosecutor's detectives.

These statements describe a common plan schemed out by these plaintiffs-in-error, Harris, and one Wright who apparently never appeared on the night of the robbery and who was never apprehended. The statements detail the inspection of the store, the knowledge or expectation that about $600-$800 might be had, the plan of the robbery, the acts constituting the holdup, the attempt to open the cash register and safe, the savage attack on the decedent including a slugging, kicking and stomping on his head by Cole until he was unconscious, his fall against the cigarette case and the flight and escape of the plaintiffs-in-error when discovered by the eyewitnesses heretofore referred to.

Before these confessions were admitted into evidence all the various police officers and Prosecutor's aides took the stand and testified in detail as to the existing conditions and situations under which the confessions were obtained. The testimony of all the witnesses for the State, including two disinterested citizen witnesses, was that the confessions were voluntarily made and acknowledged by all defendants to be such and that no threats or force were used or any direct or implied promises or inducements made. Such questions were directly asked them by the independent public witnesses and the doctor who found no evidence of marks or bruises. All these witnesses were cross-examined by the defense.

All three defendants Harris, Hicks and Cole testified to being struck, pummeled and knocked down by different police officers whom they pointed out. Yet on cross-examination they admitted that when they were confronted by the Prosecutor and his assistants they had not complained of such violence because they said no one would believe them. All their charges as to brutality were categorically denied by the persons involved.

Since the various points argued are supported by some grounds of appeal, assignments of error and specification of causes for reversal it will add to the clarity of this opinion to consider first certain points raised in common by the plaintiffs-in-error.

Both argue that the judgments are against the weight of the evidence. The provisions for appeal set out in P.L. 1946. chap. 187, section 9, R.S. 2:195A-9, N.J.S.A., do not change the duty of the court with respect to its power to reverse a judgment as being against the weight of the evidence. The pertinent provisions of section 9 of the act of 1946 are identical in language with the provisions of R.S. 2:195-19, N.J.S.A., authorizing as the assigning of error that the verdict is against the weight of the evidence when the plaintiff-in-error elects to take up the entire record with his writ of error.

Therefore we are constrained to construe R.S. 2:195A-9, N.J.S.A., as we have construed R.S. 2:195-19, N.J.S.A., and the test, under both provisions, to determine whether the verdict is against the weight of the evidence is whether it is so clearly against the weight as to give rise to the inference that it is the result of mistake, passion, prejudice or partiality. State v. Hauptmann, 115 N.J.L. 412, 180 A. 809; State v. Danser, 116 N.J.L. 487, 184 A. 800; State v. Cox, 128 N.J.L. 108, 23 A.2d 555.

Our examination of the entire record brings us to the firm conclusion that the verdicts are not against the weight of the evidence. We reach this determination in large measure because we concur in the finding of the trial court that the confessions of the plaintiffs-in-error were voluntary and properly admitted in evidence for reasons that will be stated hereafter.

There is cogent evidence in this case, aside from the confessions, that the decedent Rudominer met a felonious death. The testimony of eyewitnesses as to many details corroborates and is corroborated by the confessions. There is ample proof of the corpus delicti. The law of this state is settled that if death, through a criminal agency, be proved, and a man confesses to having caused the death, such proof will support a conviction of murder. State v. Kwiatkowski, 83 N.J.L. 650, 660, 85 A. 209; State v. Banusik, 84 N.J.L. 640, 647, 64 A. 994; State v. James, 96 N.J.L. 132, 147, 114 A. 553, 16 A.L.R. 1141.

The confessions disclose a common plan in which these plaintiffs-in-error joined to hold up and rob the decedent's store, the proofs established the felonious killing of the decedent by one of them during the carrying out of this criminal enterprise. They are both chargeable as principals under the rule that where several persons enter into a conspiracy with the common object of committing robbery, and in the attainment of that end one of the conspirators does an act which causes the death of a third person, all are principals in the commission of the homicide and may be convicted of murder in the first degree. State v. Mule, 114 N.J.L. 384, 396, 177 A. 125.

The convictions of the plaintiffs-in-error have ample support in the evidence and are consistent with the weight thereof.

The second point argued in common by the plaintiffs-in-error is that their confessions were not voluntary, but were induced by threats and fear.

Our cases make it perfectly clear that the admission in evidence of a confession, where there is an objection interposed that the same is not voluntary, presents a fact question for ...