State v. Mowser

• Decision Date: 03 March 1919
• Citation: 106 A. 416
• Parties: STATE v. MOWSER.
• Court: New Jersey Supreme Court

106 A. 416

STATE

v. MOWSER.

Court of Errors and Appeals of New Jersey.

March 3, 1919.

Walker, Ch., and Williams, J., dissenting.

Error to Supreme Court.

Philip Mowser was convicted of murder, and he brought error to the Supreme Court, which affirmed (103 Atl. 805), and he brings error. Judgment reversed for entry of peremptory judgment in favor of defendant on his plea of former conviction.

See, also, 102 Atl. 363.

Charles A. Rathbun, of Morristown, for plaintiff in error.

John M. Mills, of Morristown, for the State.

KALISCH, J. The facts which give rise to the fundamental question raised in this case are these: Mowser, the plaintiff in error, with two companions, Herbert and McCracken, conspired together to rob one Richards. Mowser knew Richards; his confed- erates did not. On the night of the robbery, Herbert and McCracken lay in wait for Richards near the latter's home. Mowser came along and notified Herbert that Richards was coming up the street and then proceeded on his way. As Richards came by, Herbert and McCracken followed him for a short distance, and then Herbert felled Richards with one or two blows on the head with a piece of gas pipe, and robbed him. Richards died from the effect of his injuries at noon of the same day. Mowser was not present when the assault was committed, but was somewhere in the immediate vicinity. On May 8, 1917, the grand jury of Morris county presented an indictment against Mowser, in the statutory form, charging him of having on May 7, 1917, willfully, feloniously, and of his malice aforethought killed and murdered Frederick Richards, at Dover, Morris county, etc. On the 8th day of May, 1917, Mowser was arraigned in the court of oyer and terminer and pleaded not guilty to the indictment. Two weeks later the same grand jury presented a joint indictment, consisting of two counts, against Mowser, Herbert, and McCracken, the first count of which charges that they, "in and upon one F. R. an assault did feloniously make and from the person of him, the said F. R., by violence and putting him in fear did forcibly take a sum of money," etc. The second count charges the defendants with an assault with intent to rob. To this indictment, the defendants, upon being arraigned in the court of quarter sessions, pleaded guilty. On a later date Mowser filed a plea of autrefois convict to the indictment for murder, setting forth the substance of the indictment for robbery to which he had pleaded guilty, and averring that the indictment for murder is based upon the same facts and grew out of the same transaction. The prosecutor of the pleas demurred to this plea, which raised the question whether a plea of a former conviction of robbery was a bar to a prosecution on an indictment for murder, where the homicide was the undesigned result in the perpetration of the robbery.

The trial judge certioraried the record into the Supreme Court to obtain its opinion on the question. That tribunal held that the plea of a former conviction of robbery was not a bar to an indictment for murder even though the homicide grew out of the same transaction. It gave as a reason for coming to this conclusion that the offenses are not the same, and that therefore the doctrine enunciated in State v. Cooper, 13 N. J. Law, 361, 25 Am. Dec. 490 was not applicable, and remitted the cause to the court of oyer and terminer for trial. State v. Mowser, 102 Atl. 363.

The accused was then served with the following bill of particulars, by the prosecutor of the pleas:

"The following is a bill of particulars furnished you in the above cause, in compliance with the terms of an order entered therein on the 24th day of October, 1917:

"Philip Mowser, late of the town of Dover, in the county of Morris, on Friday, the fourth, or Saturday, the fifth day of May, 1917, either shortly before midnight or shortly thereafter, between the said two days, in the town of Dover, in perpetrating or attempting to perpetrate a robbery, upon and of one Frederick Richards, did willfully, feloniously and of his malice aforethought, kill and murder the said Frederick Richards, contrary to the form of the statute, etc. Dated October 26, 1917, Charlton A. Reed, Prosecutor of the Pleas."

The. defendant thereupon interposed a plea of autrefois convict, in that he already stood convicted of the robbery by virtue of his plea of guilty thereto, and hence a prosecution on the indictment for murder growing out of the perpetration of the robbery was barred.

The trial judge, in accordance with the views expressed by the Supreme Court, instructed the jury impaneled to try the issue raised by the plea of autrefois convict, that the Supreme Court had practically disposed of the matter in holding that the offense of robbery and that of murder are not the same, and, if so, the defendant's plea cannot be sustained, and accordingly the jury found that the offenses are not the same. The accused was then put on trial and convicted of murder in the first degree, with a recommendation by the jury of life imprisonment.

It is the judgment, on this conviction, brought on a writ of error into the Supreme Court and there affirmed, which is now before us on review.

On the question of the legal efficacy of the plea of autrefois convict the Supreme Court followed its former opinion when the case was before it on demurrer, and affirmed the judgment for the reasons advanced in that opinion. State v. Mowser, 103 Atl. 805.

The other question raised and passed upon by the Supreme Court related to the admissibility of a confession made by the defendant. As the judgment under review must be reversed upon a fundamental ground which in effect will preclude another trial, the legal propriety of the admission of the confession becomes purely academic here. It is therefore unnecessary to decide whether the trial judge erred in admitting the confession of the defendant as one voluntarily made by him. We cannot, however, permit the matter to go entirely unnoticed, in view of the fact that the Supreme Court, after deciding that the confession was erroneously admitted in evidence, held that it was harmless error because it appeared that the defendant had entered a plea of guilty to the robbery and had set up the facts stated in the confession in his plea of autrefois convict. Assuming that the Supreme Court rightly decided that the confession was improperly admitted in evidence, we cannot concur in the view of that tribunal that it was harmless error. The subject will be again adverted to, later on, in its proper place.

To uphold the judgment of the Supreme Court that the plea of autrefois convict was not a bar, under the conceded facts and circumstances of this case, is, in effect, a direct repudiation of the doctrine laid down in State v. Cooper, 13 N. J. Law, 361, 25 Am. Dec. 490, decided by the Supreme Court in 1833, followed and approved by the Court of Errors and Appeals, in State v. Rosa, 72 N. J. Law, 462, 464, 62 Atl. 695, 696, in which latter case Chief Justice Gummere, speaking for this court says:

"The present plea, in our opinion, is manifestly insufficient in a substantial respect. Although it sets out that Galante was shot at the same time and place that Denofrio was, and that they were shot by the same person, it fails to allege or show that it was the same act which produced both homicides; and this is universally held to be the essential feature in a plea of this nature, for it is the character of the act, not the results which flow from it, which determines the question of the guilt or innocence of the person who does it. In State v. Cooper, 1 Gr. [13 N. J. Law] 371 , a case of note in our reports upon this subject, it is said 'the writers concur in stating that these pleas "must be upon a prosecution for the same identical act"'; and, although that case was decided over 70 years ago, an examination of the text-books and of the later decisions bearing upon this point will disclose no change or modification of this rule."

To be consistent with the legal rule enunciated by this court in State v. Rosa and, in the Supreme Court, in State v. Cooper, the prime inquiry, in the present case, must be whether or not the murder was the result of the criminal act of the accused done in the perpetration of the robbery to which he had pleaded guilty. If it was, then upon principle and authority of the cases just cited, the prosecution for murder is barred.

The amplification of the indictment, by the bill of particulars served upon the plaintiff in error, discloses that the murder of which he was accused was the result of the criminal act done in the perpetration of the robbery.

The state, by its bill of particulars, assumed the obligation to establish the murder by proving that it was the result of the act of the accused in the perpetration of the robbery.

Section 106 of the Crimes Act, 2 Comp. Stat. p. 1779, declares:

"Any person who in committing or attempting to commit arson, burglary, rape, robbery, sodomy, or any unlawful act against the peace of this state, of which the probable consequence may be bloodshed, shall kill another, * * * shall be guilty of murder."

This is section 66 of the Crimes Act of the Revision of 1821, and was in force when the case of State v. Cooper, supra, was decided.

Section 107 of the Crimes Act, 2 Comp. Stat. p. 1780, a much later statute, declares that—

Murder "which shall be committed in perpetrating or attempting to perpetrate any arson, burglary, rape, robbery, or sodomy, shall be murder in the first degree."

As there were no degrees of murder at common law, and all murder was punishable with death, it is quite evident that the later statute was enacted to meet the situation caused by the statutory classification of murder into murder of the first and murder of the second degree.

The conspicuous salient fact is that the perpetration or the attempt to perpetrate any of the crimes mentioned in section 107, resulting in the...