State v. Mowser

• Decision Date: 09 May 1918
• Citation: State v. Mowser, 103 A. 805, 91 N.J.L. 395 (N.J. 1918)
• Court: New Jersey Supreme Court
• Parties: STATE, DEFENDANT IN ERROR, v. PHILIP MOWSER, PLAINTIFF IN ERROR

103 A. 805

91 N.J.Law 395

STATE

v. MOWSER.

Supreme Court of New Jersey.

May 9, 1918.

Error to Court of Oyer and Terminer, Morris County.

Philip Mowser was convicted of murder, and he brings error.Affirmed.

After the decision on the demurrer to the plea of autrefois convict (102 Atl. 363), the record was remitted to the Morris oyer, and judgment there entered that the defendant answer further to the indictment.Thereupon he was allowed to file a new plea of autrefois convict, averring the same facts as in his former plea.To this the state replied that the offense on which he stood convicted upon his plea of guilty and the offense charged in this present indictment are not one and the same offense, but are divers and different acts, crimes, and offenses, and concluded to the country.The jury found that the offense in the former indictment, of which Mowser was convicted on his plea of guilty, and the offense now charged against him, were not one and the same offense, but divers and different acts, crimes, and offenses.Mowser refused to plead further, and the court ordered a plea of not guilty entered.On the trial of this issue he was convicted of murder in the first degree, with a recommendation to life imprisonment.A writ of error was issued out of this court as a writ of right.No question was made by counsel as to the propriety of this course; it was assumed that the case is not one punishable with death, since the jury recommended, as the statute permits, life imprisonment.

Argued February term, 1918, before SWAYZE, BERGEN, and BLACK, JJ.

Charles A. Rathbun, of Morristown, for plaintiff in error.John M. Mills, of Morristown, for the State.

SWAYZE, J. 1.As to the plea of autrefois convict, we need add nothing to the opinion we expressed when the case was before us on the demurrer.Whether it was necessary to allow the defendant to file a new plea to the same effect, is a question of no moment.The permission to file a new plea was in favor of the plaintiff in error.The verdict thereon has settled as a fact what the demurrer admitted for purpose of passing on the legal sufficiency of the plea.We find in this respect no error.

2.We think the defendant might properly be convicted as principal.He pointed out the deceased to Herbert, who is said to have struck the fatal blow, and to McCracken, who rifled the man's pockets.He was present when the pocketbook was opened by McCracken in Herbert's room immediately after the robbery.The jury might well have believed that he was near enough to render assistance when the blow was struck, and prepared to do so.This made him principal in the second degree.Roesel v. State, 62 N. J. Law, 216, 222, 41 Atl. 408.The law was carefully stated by the learned trial judge.We find no error in this respect.

3.The only question that has caused us any difficulty is the question of the admissibility of the confession.It was secured by the county detective while the prisoner was in jail.The sheriff, the chief of police of Dover, and the prosecutor of the pleas were present part of the time while the detective was trying to secure...