State v. Kress

• Decision Date: 09 May 1969
• Citation: 105 N.J.Super. 514,253 A.2d 481
• Parties: The STATE of New Jersey, Plaintiff, v. James KRESS, Robert Troy and John Jordan, Defendants.
• Court: New Jersey Superior Court

Page 514

105 N.J.Super. 514

253 A.2d 481

The STATE of New Jersey, Plaintiff, v. James KRESS, Robert Troy and John Jordan, Defendants.

Superior Court of New Jersey, Law Division Criminal.

May 9, 1969.

Martin J. Queenan, Burlington, Prosecutor for Burlington County, for the State.

Lord & Doyle, Woodbury, for defendant James Kress (Joseph F. Doyle, Woodbury, appearing).

Hartman, Schlesinger, Manuel & Schlosser, Mount Holly, for defendant Robert Troy (Jan M. Schlesinger, Mount Holly, appearing).

Stanley C. Van Ness, Public Defender, for defendant John Jordan (Harold C. White, Deputy Public Defender, appearing).

MARTINO, A.J.S.C.

Three defendants stand indicted for the crime of murder. The indictment is in the usual form and alleges that they jointly, on November 7, 1968 in the Township of Cinnaminson, did willfully, feloniously and of their malice aforethought kill and murder Douglas Tyler, contrary to the provisions of N.J.S. 2A:113--1 and 2A:113--2, N.J.S.A. They stand indicted in separate indictments of lesser offenses which include conspiracy to feloniously and forcibly take and steal from the persons of employees of the Garden State Bank (N.J.S. 2A:98--1, N.J.S.A.); carrying certain firearms, to wit, pistols (N.J.S. 2A:151--41, N.J.S.A.); stealing an automobile (N.J.S. 2A:139--1) and robbery (N.J.S. 2A:141--1 and 2A:151--5, N.J.S.A.).

The present application is directed to the murder indictment. Defendants move to quash it and seek an Order fixing bail. They rely on answers supplied by the State to a demand for a bill of particulars, and the transcript of the testimony taken at an In camera hearing for the fixing of bail in the case of defendant Robert Troy.

The facts which resulted in the murder indictment were these:

On November 7, 1968, while the bank was open to business, three men, who appeared suspicious to a vice-president, looking through an outside window entered the bank. Unknown to them, he 'hit' the alarm button. As they entered they drew revolvers and ordered him away from his desk. Two of the defendants leaped over a counter and herded the tellers and officers into the back room. Meanwhile, police officer John Obuchowski was in the police station when the alarm sounded there. He proceeded to the bank, alone. Upon arriving there his attention was called to two armed men who were walking toward the front door. He took a position facing the front door and pointed his shotgun toward that door. He saw a man walk out the door carrying a bag and shouted 'Halt!' The man turned and ran back into the bank. At this point a woman, apparently a customer, was approaching the bank and the officer waved her away. Then another policeman arrived and was told by Obuchowski to watch the drive-in window because from that spot he was an easy target for anyone within the bank. The front door opened again, a man in a white shirt came out, apparently saw the police officer and ran back although he had also been warned to helt. The front door opened again and a man was walking in bent over position in front of one of the defendants who had a drawn gun. Obuchowski shouted 'Halt!' but the first man kept coming. The officer fired his weapon and struck the first man, but before he could shoot the armed defendant the latter returned to the inside of the bank. Obuchowski identified the armed defendant as Robert Troy. The person who was shot and fatally wounded was Douglas Tyler, a bank official. His wrists were handcuffed behind his back and a coat had been thrown over his shoulders. Statements of witnesses whose names were furnished defendants in the bill of particulars definitely and unequivocally indicated that one of the defendants ordered decedent to go with him, and this command was given shortly before they heard the shotgun blast. After the killing and the arrival of more police, defendants meekly surrendered.

Defendants contend that since the death of the bank official was caused by a policeman's bullet, a charge of murder against them has no basis in law. The State does not agree and argues that while our statutes on murder would mark this a first-degree case, even though the lethal weapon was fired by the police officer, another aspect of the case, namely defendants' use of decedent as a shield in attempting to escape, would justify a murder conviction.

Pennsylvania and California have had occasion in recent years to pass upon somewhat similar situations. Each has concluded that under its statutes covering murder it is necessary, in order to apply the felony murder doctrine, to show that the conduct causing death was in the furtherance of the design to commit a felony, and death must be a consequence of the felony and not merely coincidental. Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (Pa.Sup.Ct.1958). In People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130 (1965), the California Supreme Court held that for a defendant to be guilty of murder under the felony murder rule, the act of killing must be committed by defendant or his accomplice acting in furtherance of their common design.

Both of the cited cases arose out of a killing of a co-felon by a victim of the robbery. The present case involves the killing of an innocent person by a police officer who was called to the scene to apprehend the felons who were in the course of perpetrating a robbery.

While California has a statute defining First degree murder which is similar to ours, their definition of Murder is dissimilar. California's murder statute, Penal Code, § 187, as it read when Washington, supra, was decided, stated:

'Murder is the unlawful killing of a human being, with malice aforethought.'

Pennsylvania has no statutory definition of murder; murder is founded upon the common law and includes the felony-murder concept. United States ex rel. Almeida v. Rundle, 383 F.2d 421 (3 Cir. 1967).

The common law did not recognize degrees of murder. Murder in either of the statutory degrees in our State was murder at common law. State v. Brown, 22 N.J. 405, 126 A.2d 161 (1956). Where a statute has varied the whole subject of the common law in regards to a particular crime and has changed the character of the offense or the nature or degree of punishment, the statute must be regarded as a virtual repeal of the common law because such must be presumed to have been the intention of the Legislature. But unless such intent is manifest, repeal by implication cannot be inferred. State v. Norton, 23 N.J.L. 33 (Sup.Ct. 1850); State v. Western Union, 12 N.J. 468, 97 A.2d 480 (1953).

New Jersey defines murder and degrees of murder. N.J.S. 2A:113--1, N.J.S.A. provides as follows:

'If any person, in committing or attempting to commit * * * robbery, * * * or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, Or if the death of anyone ensues from the committing or attempting to commit any such crime or act; or if any person kills a judge, magistrate, sheriff, coroner, constable or other officer of justice, either civil or criminal, of this state, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty, or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then Such person so killing is guilty of murder.' (Emphasis added)

N.J.S. 2A:113--2, N.J.S.A. defines the degrees of murder:

'Murder which is * * * committed in perpetrating or attempting to perpetrate * * * robbery * * * is murder in the first degree.'

New Jersey's definition of Murder as distinguished from its definition of the Degrees of murder is novel, as an examination of the various statutes throughout the nation will reveal. Many states have used the common law definition as a basis for the offense of felony-murder. See Morris, 'The Felon's Responsibility for the Lethal Acts of Others,' 105 U. of Pa.L.Rev. 50, 51 (1956).

The classifications of homicide at common law are (1) justifiable, (2) excusable and (3) felonious homicide. The first has no share of guilt at all, the second very little but the third is the highest crime against the law of nature that man is capable of committing. 4 Blackstone's Commentaries 178; Commonwealth v. Redline, Supra.

'The clause, 'or if the death of anyone ensues from the committing or attempting to commit any such crime or act;' in N.J.S. 2A:113--1, N.J.S.A., requires interpretation. This clause is closed by a semicolon. Then follows another clause which relates to a different subject and which ends with the phrase, 'such person so killing' is guilty of murder. If the expression, 'such person so killing,' is to be related to the clause in question, then a construction of the statute would require the course taken by Redline and Washington in that the factual situation, which is conceded, would not be classified as murder as far as these defendants are concerned since the fatal shots were not fired by any one of them.

Ordinarily the word 'or' in a statute is to be considered a disjunctive particle indicating an alternative. Murphy v. Zink, 136 N.J.L. 235, 54 A.2d 250 (Sup.Ct.1947), affirmed 136 N.J.L. 635, 57 A.2d 388, 54 A.2d 250 (E. & A. 1948).

'The purpose of judicial interpretation is the discovery of 'the true sense of the form of words which are used * * * taking all its parts into consideration, and, if fairly possible, giving them all effect. '' State v. Murzda, 116 N.J.L. 219, 183 A. 305 (E. & A. 1936).

Nearly all cases emphasize the controlling factor of legislative intent, not only as to the meaning of particular words and phrases but also the general spirit of the act in question.

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