State v. Lederman, 170.

• Decision Date: 02 February 1934
• Docket Number: No. 170.,170.
• Parties: STATE v. LEDERMAN.
• Court: New Jersey Supreme Court

170 A. 652

STATE

v. LEDERMAN.

No. 170.

Court of Errors and Appeals of New Jersey.

Feb. 2, 1934.

and three years before homicide, and question whether defendant was in good health two years before, held inadmissible as too remote.

The CHANCELLOR, and BODINE, HEHER, and PERSKIE, Justices, and KAYS and DILL, Judges, dissenting.

Error to Court of Oyer and Terminer, Essex County.

Fannie Lederman was convicted of murder in the second degree, and she brings error.

Affirmed.

Joseph Kraemer and Charles Handlei>both of Newark, for plaintiff in error.

William A. Wachenfield, prosecutor, and Joseph E. Conlon, both of Newark, for the State.

CASE, Justice.

Fannie Lederman, herein called the defendant, was convicted in the Essex oyer and terminer in the second degree for the murder of her husband, David Lederman. The case comes up on bill of exceptions and also under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863, § 136).

Defendant gathers the alleged errors under four points. We shall discuss the last one first. It is that the verdict is against the weight of the evidence.

The defendant was forty-eight years of age. She lived with her husband and four children, ranging from twelve to twenty years of age, in a second story apartment consisting of four rooms arranged in a straight line, one behind another. The front hall ran longitudinally with the apartment, had a door entering the front room and another entering the kitchen, where the hall ended. The kitchen had a back door opening on a porch that was used in common with other tenants. A family named Rudy lived in the apartment on the opposite side of the hallway.

Rose, the youngest child, returned from school on Monday, March 13, 1933, at about half past 11 o'clock. She entered the front hall, and, finding both doors locked, knocked so loudly that she was heard by the Rudys. She finally gained entrance by going through the Rudy kitchen and over the back porch into the Lederman kitchen. There she heard her mother moaning. Her father was dead on his bed in the room adjoining the kitchen, and her mother was lying on the floor of the room next forward. A hospital was notified. The house surgeon came immediately. The defendant was still lying on the floor, apparently unconscious. The physician was convinced by a nerve test that the woman was not in fact unconscious; he further concluded that, although she had bruises on both cheeks, the blows that caused those marks were not sufficient to render her unconscious. A tooth of the defendant and a broken false plate from the defendant's mouth were found on the floor. The defendant was taken to the hospital. An examination there made disclosed that there was no blood on her mouth or about her lips, and that her face was not lacerated. Nevertheless there were blood marks on the back of her hands and blood marks on her face such as would be caused by contact with bloody hands, but which did not appear to have come from any injury sustained by her. A microscopic and chemical examination showed that numerous spots upon her dress, apron, stockings, and shoes were blood of human origin. The defendant had worn two pairs of stockings, one over the other, and a blood spot on one of the stockings, considerable enough to carry through to a corresponding position on the stocking worn beneath, bore evidence of being watered as though in an attempt at washing. A sweater was worn by the defendant at the time she was found—significant because earlier in the morning she did not have it on.

The deceased had been beaten severely about the head, one wound on the back of the head and thirteen wounds on the face—about evenly distributed between the right and left side. The bedding at and near the pillows was drenched with blood. There was a pool of blood on the floor at the bedside, and the wall, except as protected by the person of the murderer, was spattered. Dr. Martland testified that in his opinion the deceased had died "around nine, ten or eleven o'clock— probably nearer ten than any other time." He further testified, with regard to the strength required for such violence, that, although the result indicated strong blows, they "might have been administered by a twelve year old child." In addition to the wounds made on the occasion of the murder, earlier injuries were found, consisting of bruises and lacerations made two or three days before.

The testimony of the defendant was that she had last seen her husband sitting in the kitchen smoking a cigarette, that she then proceeded to clean the bedrooms, and was busy in her own room when "a man came in with a mask on and I was afraid and I called my husband and the man quick come in— and he hit me in the face"; that she does not remember how many times she was hit; and that she does not know what happened after that until she found herself in the hospital. That is her brief and rather colorless story. There is little in the way of supporting incident. The room in which the decedent was found lying on the bed, done to his death, was immediately adjoining the one in which the defendant says she was attacked and in which she was discovered. The two rooms are small. It does not appear that the door between the two was closed. A considerable sound could hardly have occurred in one without being heard by a person in the other.

The state's case was entirely circumstantial, but the jury was justified in finding guilt. The jury could well have concluded that the apparent unconsciousness of the defendant was really feigned; that the defendant's injuries were received in the course of a murderous assault upon her husband; that the spots upon the clothing were splashes of her husband's blood received contemporaneously with, and as a result of, his wounding; that the blood stains on her shoes came from the pool at her husband's bedside during or subsequent to the fatal assault; and that the sweater which she wore as she lay on the floor was donned by her after the attack upon her husband; all of which is contradictory of the story of the "masked man," and consistent only with the hypothesis of her own guilt.

To justify the setting aside of a verdict as against the weight of the evidence, that fact must be so clear as to give rise to an inference that the verdict was the result of mistake, passion, prejudice, or partiality. State v. Treficanto, 106 N. J. Law, 344, 146 A. 313. The present case supports no such inference. The verdict was not against the weight of the evidence.

The remaining points on defendant's brief have to do with the trial court's rulings on questions of evidence. The first is that "the court erred in permitting over objection on the part of the defendant to the entire line, the cross-examination of defendant's witness, Victor Lederman, on the collateral, Irrelevant and immaterial issue, and in permitting in evidence said witness' statement made to the police as state's Exhibit S-24, and permitting the state over objection on the part of defendant to illegally use said examination and evidence for the purpose of proving defendant guilty of an attack made upon the deceased on March 10, 1033, a crime not charged against her in the indictment."

Exhibit S-24 was a statement to the police, taken down in writing on the day of the murder, made and signed by Victor J. Lederman, son of the defendant and the deceased. It was placed in evidence for the purpose of impeaching Victor's oral testimony in two respects. Not only was it explicitly offered for that purpose; the court charged verbatim the request submitted by the defendant so confining the use to be made of it by the jury. A portion of the...