State v. Gimbel
| Decision Date | 20 October 1930 |
| Docket Number | No. A-2.,A-2. |
| Citation | 151 A. 756 |
| Parties | STATE v. GIMBEL. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
If facts are testified to which are accusations against a defendant charged with crime, which he could by his oath deny, and he fails to take the witness stand in his own behalf, it raises a strong presumption that he cannot truthfully deny those facts.
Syllabus by the Court.
It is not error to instruct the jury as above at the conclusion of that portion of a charge in which the court says that failure of a defendant to take the witness stand raises no presumption of his guilt nor should it be considered as prejudicial in respect to the jury's determination as to whether or not they should attach to their verdict a recommendation of life imprisonment in case the jury find him guilty (of murder in the first degree).
Syllabus by the Court.
Nor was it error for the trial judge to instruct the jury that in view of the testimony that the murder was committed in the perpetration of a robbery, the defendant is either guilty of murder in the first degree or he is not guilty; that if they believed the testimony of the state's witnesses, which was uncontradicted, that the defendant held up and robbed the grocery store and ran away, and in the course of being pursued, shot and killed the deceased, he is guilty of murder in the first degree.
Syllabus by the Court.
When, incident to a robbery, the robber kills a third party who is endeavoring to check his flight and apprehend him, the killing is so closely connected with the robbery as to be part of the res gest?thereof, which may be an emanation of the act of robbery, and, although committed after the fact thereof, is still committed in the perpetration of the robbery within the meaning of the statute, and is murder of the first degree.
Syllabus by the Court.
The defendant in a criminal case is entitled to have the jury consider all of the facts in evidence, even if he does not deny those which concern his own acts, as he is entitled to the presumption of innocence, unless and until the jury have agreed upon a verdict of conviction upon a consideration of all the evidence, and that beyond a reasonable doubt.
Error to Court of Oyer and Terminer, Essex County.
William Gimbel was convicted of first degree murder, and he brings error. Affirmed.
John A. Bernhard and Joseph M. Degnan, both of Newark, for plaintiff in error.
Joseph L. Smith, Pros. of the Pleas, and Joseph E. Conlon, Asst. Pros. of the Pleas, both of Newark, for the State.
WALKER, Chancellor.
The defendant, William Gimbel, was tried and convicted in the Essex oyer and terminer, of murder in the first degree for the killing of Paul Bohrer, on January 16, 1930, and, there being no recommendation for life imprisonment, the defendant was sentenced to death. He brings error into this court, where the argument of his appeal is rested upon two propositions, (a) exceptions to the charge of the court as delivered, and (b) refusal to charge as requested by defendant.
The facts in the case are shortly these: On January 16, 1930, defendant (twenty years of age) left his house, 46 New Street, Belleville, about 6:30 o'clock, a. m., carrying on his person a 38-calibre revolver, which he had stolen from the factory where he worked. The gun was fully loaded. At 12:45 o'clock, p. m., he entered the Atlantic & Pacific Tea Store, Belleville, as a young lady, the only customer, was leaving. The manager and a clerk were within. Defendant drew the revolver from his right-hand overcoat pocket and said: "Stick 'em up," and also, "Make it snappy or I'll plug you full of leads." The manager, under orders from defendant, went to the cash register and emptied its contents on the counter: he placed the money in a bag and then on orders from the defendant, he took off his wrist watch and placed that in the bag with the money. The clerk was standing in the rear of the store in accordance with orders from defendant, who, after taking the money and the wrist watch, ordered the manager and clerk to the rear of the store where he put them in a small room adjoining and closed the door and told them that if they left within five minutes he would "plug them full of lead."
Defendant then made his escape from the back door of the store and proceeded to run away, having in his possession the paper bag containing $57.81, cash belonging to the Atlantic & Pacific Store, the wrist watch and the gun which he had used in the robbery. He walked down certain streets and thinking that he had been seen, started to run away. He ran through several streets and lots and during his flight was pursued by Paul Bohrer (deceased), Edward Maurer, the manager of the store, and several other persons. A Dodge truck was standing on the street and defendant approached it, apparently thinking the driver was on it and that he would make the driver take him away and that he would thus be enabled to make his escape. There was no driver on the truck, but Bohrer and Maurer were in the street in its rear. Gimbel fired two shots at these men, one bullet hit Bohrer in the abdomen, passing backward and downward to the right, through the vital organs and out of the body on the right side of the spine, as a result of which the stricken man afterwards died. Defendant then mounted the truck and continued his efforts to escape. He abandoned the truck near the building of the Federal Leather Company, which was between one and two miles away from the place where he mounted the truck. He entered the office of the Leather Company and asked the clerk at the information desk to call a taxi cab for him. While in the office the manager entered, still in pursuit of the defendant. The latter hid behind the door and as the manager came in he ran out again and continued his flight; he ran into an office and engaged a taxi cab. He got into the rear seat of the cab, with the driver in his seat. At that moment one of the Belleville policemen, who was pursuing him in a police automobile, saw the defendant in the taxi cab, jumped out of the police car, ran over to the taxi, where the defendant was making an effort to get his revolver out of his overcoat pocket. The officer grabbed the pocket and held up the gun and succeeded in getting it away from the defendant. He then grabbed the defendant and placed him under arrest.
On the same day defendant made a voluntary statement in writing, which was admitted in evidence in the case. It described the facts practically as above stated. It was an admission of guilt. When defendant was arrested there was found upon him the paper bag containing the money, and...
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