State v. Foulds, 8.
| Decision Date | 20 October 1941 |
| Docket Number | No. 8.,8. |
| Citation | 23 A.2d 895,127 N.J.L. 330 |
| Parties | STATE v. FOULDS. |
| Court | New Jersey Supreme Court |
[Copyrighted material omitted.]
George Foulds was convicted of murder in the first degree, and he brings error.
Affirmed.
Andrew J. Duch, Prosecutor of the Pleas of Mercer County, of Trenton, for defendant in error.
Andrew M. Cella and David Kelsey, both of Trenton, for plaintiff in error.
By this writ of error George Foulds, convicted of murder in the first degree, without recommendation, seeks a reversal of that judgment on strict bill of exceptions.
The argument on this appeal is developed under three main headings. It is said that the trial court committed reversible error, first:
(a) In receiving in evidence Foulds' confession over objection.
(b) In admitting in evidence a statement or confession allegedly made but not signed by Foulds.
(c) In the admission of the signed confession which was made at a time when Foulds was held on a lesser charge than murder.
Second:
(a) Because the court denied defendant's motion to disqualify the jury when first they reported their finding, but instead directed that they retire and endeavor to reach a verdict.
(b) Because the court "reinstructed" the jury before it retired the second time, and (c) Because the verdict finally announced by the jury was erroneous and faulty.
Third:
(a) Because the court against defendant's objection permitted a state's witness to fire a gun in the courtroom.
(b) Because the court refused to grant a motion for mistrial.
(c) Because a certain passage in the court's charge to the jury was, plaintiff-inerror contends, prejudicial.
Before entering upon any exposition of the law of the case the facts should be set out. The plaintiff-inerror was indicted for the murder of Samuel Cominsky, done in the attemped perpetration of a robbery. R.S. 2:138-1; 2:138-2, N.J.S.A. 2:138-1, 2:138-2, Cominsky died as a result of a bullet wound inflicted by the defendant, Foulds. The decedent had been the employer of the defendant who left his service, went elsewhere to obtain better employment, but, being unsuccessful, returned to the City of Trenton. It was the custom of the decedent, as Foulds knew, to go to a Trenton bank each Friday, obtain money for the payroll of his employees and return to his place of business. Foulds knew the license number of the decedent's car and after Cominsky left the bank on Friday, December 27, 1940, Foulds accosted him and inquired whether he might return to work for him. Cominsky said, "All right." Foulds then asked Cominsky if he would mind taking him out to Cominsky's shop, since he was going that way, to which Cominsky replied, "No, he had to stop at the post office." Cominsky drove away. Foulds, on foot, followed him to the post office. At the time Foulds was armed having taken two revolvers from his home that morning.
When Cominsky left the post office and returned to his car Foulds again asked for a ride and Cominsky assented. They proceeded to East Trenton and enroute Foulds "pulled a gun on him (Cominsky) and told him to turn right on Filmore * * *." Cominsky resisted and wrested the gun from Foulds who thereupon attempted to leave the car and while so doing pulled out the other revolver and fired a shot which entered Cominsky's abdomen. Cominsky died the following day from the wound. Foulds immediately after the shooting hurried home, deposited the revolver in a cedar chest, changed his clothes and proceeded to a railroad yard in Trenton to board a freight train to Pennsylvania, when he was captured by the police.
This narrative is set out in the detailed confession which Foulds signed.
Turning now to the argument, it is said that the confession was not voluntary and, further, that even though voluntary when made it should not have been admitted in evidence in any event, because, when made it was at the time when the defendant was in custody for atrocious assault and battery with intent to kill and attempted robbery. The theory urged is that the victim, having later died, that fact rendered the statement previously made involuntary and therefore inadmissible. There is no merit in either contention. The indispensable prerequisite to the admission of a confession in evidence is that the statement of the prisoner be made voluntarily, that is, that it be not induced by fear or by hope of favor in the prosecution that is to follow, held out by someone in authority. The record shows that when the admission of the confession in evidence was challenged, the learned trial judge, realizing that the state had the burden of proving that the confession was in fact voluntary, excused the jury in order that there might be a preliminary inquiry into whether or not there was any basis for the objection of the plaintiff-inerror. The witnesses, in this phase of the case, including the defendant, were searchingly examined to enable the court to determine before ruling on the admissibility of the confession whether any inducement either by fear or promise was shown to have been involved in the making of the confession. That the court was correct in this procedure is not open to debate.
The issue was one of both law and fact; of law, that is whether that which was said, no matter what, by the state's representative at the time the confession was made, amounted to an inducement which instilled fear or hope of favor or benefit in the mind of the defendant so far as his trial was concerned. This is a question for the court alone. Of fact, that is whether that which the prisoner says was the inducement was in effect done or said or promised by the person to whom or in whose presence the confession was made. This is a matter for the jury. The court, after hearing the testimony on this issue, admitted the confession in evidence and in charging the jury was most careful to safeguard the rights of the defendant. The jury were instructed that "such confession should be disregarded" by them unless they were satisfied that it had been made voluntarily; that they might "disregard" any part of the confession which the defendant, if they believed him, said he had not made, and that it was their prerogative to ascribe to the confession the weight and importance that they thought it merited under all the circumstances. These instructions were advantageous to the defendant. Compare State v. Compo, 108 N.J.L. 499, 504, 158 A. 541, 85 A.L.R. 866. The admission of the confession in evidence, there being plenary evidence to support the act of the court in this particular, may not be assigned for error. Cf. State v. Yarrow, 104 N.J.L. 512, 141 A. 85.
Concerning the second point argued as error under this heading, that the court received in evidence a statement attributed to the defendant but which he refused to sign, it is enough to say that an unsigned statement or confession made by the accused, and as here authenticated by competent testimony that it was voluntarily made by him, may be received in evidence. Cf. The State v. Donato, 106 N.J.L. 397, 148 A. 776; 22 C.J.S., Criminal Law, § 833.
The argument under the third subdivision of this heading, that because the signed confession was made before the victim died therefore the confession might not be used at his trial for murder, is clearly lacking in merit. We are not aware of any authority to support this proposition and none is cited in the brief of the plaintiff-inerror. The confession was found by the court to have been made voluntarily. The jury could find with propriety that this confession was the defendant's own uninspired account of the attempted robbery and the shooting. The fact that the victim of the shooting later died does not in any respect weaken the defendant's voluntary confession or render it inadmissible. Cf. State v. Silverio, 79 N.J.L. 482, 76 A. 1069. Shortly before the confession was made the prisoner was brought into the presence of Mr. Cominsky, in the hospital, who at the time was actually receiving a blood transfusion. The testimony is that the defendant then and there admitted his act and said that he was sorry for what he had done. Later he made and signed the confession. The following day, Cominsky having died in the interim, Foulds was told about his death, that he was about to be questioned again and that the charge against him was murder. He did not repudiate his former statement. He was advised that he might answer questions or not, as he saw fit, but whatever he did say He answered in the affirmative and proceeded to make a statement as follows:
It is impossible to find any merit in the argument that these confessions or statements should not have been received in evidence. The signed confession was voluntarily made. There was no deception used in obtaining it. The statement which defendant refused to sign, when informed that Mr. Cominsky had died, corroborated the first confession. In brief, he stated that all the information he had to give about the crime had been given and that he had no corrections to make in the statement previously made. It was not error to have admitted both statements in evidence.
Under point two (reasons for reversal...
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