State v. Cooper

Decision Date24 November 1952
Docket NumberNo. A--25,A--25
Citation92 A.2d 786,10 N.J. 532
PartiesSTATE v. COOPER et al.
CourtNew Jersey Supreme Court

George Pellettieri, Trenton, and Arthur Garfield Hays, New York City, argued the cause for appellants.

Mario H. Volpe, Mercer County Prosecutor, Trenton, argued the cause for the State (Frank H. Lawton, First Asst. Prosecutor, Trenton, on the brief).

The opinion of the court was delivered by


Six men in 1948 were indicted and convicted of murder in the first degree. They were sentenced to death. It was a long and difficult trial lasting 44 days.

On appeal, this court reversed the judgment rendered against them because of errors committed in the trial. State v. Cooper, 2 N.J. 540, 67 A.2d 298 (1949).

On the retrial ordered, four of the defendants were acquitted by the jury and two, Cooper and English, were convicted of murder in the first degree and sentenced to life imprisonment in accordance with the jury's recommendation.

In their appeal, presently before us, they seek to set aside the judgment, contending: (1) a verdict should have been directed in their favor as there was no legal evidence from which an inference of guilt could be drawn, nor was there proof of robbery or attempted robbery or of conspiracy; (2) the admission of the defendants' confessions violated their constitutional rights; (3) the verdict was against the weight of the evidence; and there was error (4) in admitting into evidence unsigned, unacknowledged notes taken by a police officer from a conversation with one of the defendants; (5) in the prosecutor's attempts to attack the credibility of two witnesses by showing prior convictions of crime; (6) in admitting into evidence a soda bottle and a bottle neck, S--40 and S--44; (7) in admitting into evidence a coat, bottle and sock found by George English, and a photograph; (8) in neutralizing the testimony of Dr. Sullivan on the ground of surprise; (9) in rejecting the defense testimony relating to the temper of the community; (10) in sustaining objections to all questions on cross-examination of the State's witnesses designed to establish over-zealousness and animus of the police in reference to their efforts as to the confessions; (11) in restricting the cross-examination of State's witness Miller; (12) in retricting the cross-examination of State's witness Toft; (13) in denying certain requests to charge; (14) because the verdict was inconsistent with the evidence presented because the alleged principal was acquitted.

Each point advanced will be dealt with in order of its presentation.


William Horner and his reputed wife, Elizabeth McGuire, generally known in the community and referred to at the trial as Mrs. Horner, conducted a second-hand furniture store at 213 North Broad Street, Trenton. On the morning of January 27, 1948 he was murdered with a blunt instrument and she was seriously injured by an assault hereinafter described.

The first floor of the establishment consisted of two rooms, both stacked high with old household furnishings, appliances and accessories. Each extended the full width of the shop and the floor of the rear room was a step lower than that of the front.

Mrs. Horner testified on the morning in question, about 10:30, three colored men entered the store (whom she subsequently identified as the defendant English and his co-defendants Forrest and Wilson, who were acquitted on the retrial); English and Forrest proceeded to the rear room where Horner was, while Wilson asked her about a second-hand stove; she was engaged in showing it to him when she received a severe blow on her head and another on her face; she was stunned and rendered partially unconscious, her next recollection being of standing at the front door calling for help.

She was taken to a hospital where several stitches were required by the lacerations about the head, and it was ascertained she had sustained fractures of her ribs and cheekbone. The medical testimony indicated a severe swelling of her entire face and edema of the conjunctiva and eyelids to such an extent her eyes were completely closed at the time of an ophthalmological examination four days later. This condition had, however, largely subsided by the time of her discharge from the hospital on February 5.

A passer-by, one Frank Eldracher, saw Mrs. Horner, her face bloodied, open the door of the furniture store and heard her begin to scream. He ran to the corner and notified a police officer who proceeded to the scene, spoke briefly to Mrs. Horner, discovered Horner lying unconscious on a mattress in the back room and turned in the alarm. An ambulance was summoned and Horner taken to Mercer Hospital, where he died that afternoon of a compound, comminuted fracture of the skull which, according to the autopsy surgeon, was caused by a blunt instrument and could have been inflicted by a bottle such as that admitted in evidence as Exhibit S--40, described and discussed below.

Police officers inspecting the premises found a full bottle of soda water in the back room and the neck of a bottle of similar make in the front. Both were covered with fragmentary ridges and smears of finger-prints but, in the opinion of the police expert who examined them, these traces were not sufficiently clear and complete to be of any value either to identify the person or persons who made them or to eliminate a possible suspect.

On February 6 a policeman went to the home of George English, father of the accused, in response to a complaint that the son was using the father's car for his own purposes without permission. Pursuant to this complaint Collis English was picked up at his mother's house, where he lived, and taken to the precinct for questioning.

During the interrogation English was queried about possible participation in the events of January 27 at the Horner store. At first he denied all knowledge, but later admitted he had driven to the vicinity with the defendant Cooper in the car belonging to his own father. There, at Cooper's request, he had gone into a nearby jewelry store to inquire about a watch of Cooper's. The jeweler denied having it and English emerged to the sidewalk in time to see Cooper and two other colored men run out of the second-hand store and drive off in the car, one of them having what appeared to be blood on his shirt. The officer took longhand notes on this statement, which is the subject of more detailed discussion hereafter.

Early the following morning, on information from English, the police arrested the defendants Cooper and Wilson. On the same day the defendant Forrest arrived at the police station to inquire about English and was also detained. Shortly thereafter the other two defendants, MacKenzie and Thorpe, who had been implicated by stories given the police by English and Cooper, were apprehended.

On February 7 Mrs. Horner was taken to the police station and was shown three or four of the accused, including English and Cooper, but was unable to identify any of them as her assailants.

Between the time of their arrest and February 11 all of the accused except Wilson made statements, some in their own handwriting and some in formal question and answer form typed and signed, admitting some part in a planned robbery of and assault upon the Horners. Only two of these statements, one by each of the present appellants, were admitted in evidence under circumstances which will be discussed later. On February 11 all six accused were arraigned.

The second trial was protracted, complicated and lengthy, consuming almost 15 weeks in time. There were many exhibits and more than 140 witnesses were heard. Many conflicts in the evidence occurred and the testimony frequently clashed. It resulted in the acquittal of all except English and Cooper, who were again convicted and sentenced to life imprisonment. On this appeal they assert the 14 grounds for reversing the judgment already specified.


The first error cited is the trial court's refusal to direct a judgment of acquittal on the defendants' motion at the end of the State's case and again at the completion of the entire case. These motions were predicated on the alleged failure of the State to prove the killing occurred during the course of a robbery or attempted robbery and that there was any unlawful combination or conspiracy among the defendants and no legal evidence before the jury from which an inference of guilt could properly be drawn.

Mrs. Horner, the appellants stress, immediately after the crime described her assailants as being 'light colored' and was unable to identify any of the men shown to her at the police station on February 7, which group supposedly included both English and Cooper. They, it appears from the record, are of very dark complexion.

She also testified only three persons were in the store at the time the crime was committed and that Cooper, whom she knew from a previous occasion, was not one of these. The State's theory was that five of the accused entered the store while the sixth remained on the sidewalk as a lookout. There is evidence showing while Mrs. Horner was exhibiting the stove immediately before she was struck, she was at the rear of the front room, which was piled high with old furniture and kindred miscellany, and so would not have been in a position to see two others who might have entered the store after the arrival of the first three but before the crime was committed.

It is suggested Mrs. Horner first reported she had been struck with brass knuckles whereas, according to the State's theory, the soda bottles found in the store soon after the crime were the weapons used.

At the time she was assaulted Mrs. Horner was bending over the stove to open the grate and was hit from behind. As she lifted her head she was hit again on the side of her face, suffered serious injuries and thereafter apparently has little recollection of what occurred. It would be...

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