State v. Moynihan

• Decision Date: 15 May 1919
• Docket Number: No. 14.,14.
• Citation: 106 A. 817
• Parties: STATE v. MOYNIHAN.
• Court: New Jersey Supreme Court

106 A. 817

STATE

v. MOYNIHAN.

No. 14.

Court of Errors and Appeals of New Jersey.

May 15, 1919.

Error to Supreme Court.

Edward Moynihan was convicted of murder in the first degree, and, judgment having been affirmed by the Supreme Court, he brings error. Affirmed.

On error to Supreme Court, in which the following per curiam was filed:

"This case is before us for review upon strict bills of exception and under the 136th section of the Criminal Procedure Act (Comp. St. 1910, p. 1863). Moynihan, the plaintiff in error, was convicted of murder in the second degree in the Hudson oyer and terminer, on an indictment charging him with having murdered Edward Fantry on October 7, 1916. The indictment is composed of three counts. The first count is in the form authorized by statute, in charging the crime of murder; the second count is for manslaughter; and the third for assault and battery.

"The facts are briefly these: Fantry, the deceased, with several companions, was seated at a table in the dining room of a restaurant in Scheutzen Park. His companions ordered beer, and considerable quantity of it had been drunk when deceased ordered some more beer, and no sooner had the waiter turned away to execute the order than shots were fired in the direction of the table at which the deceased was seated, with fatal effect to the deceased. The participation of the plaintiff in error in the firing of the shots, one of which caused Fantry's death, rests, as is stated in the brief of counsel of Moynihan, upon the testimony of Kennel and Kettles, two police officers who testified on behalf of the prosecution, Kennel testifying that Moynihan and another man were firing shots from a revolver in the direction of a table at which the deceased and his companions were seated, and that when the witness apprehended Moynihan a revolver with five chambers discharged dropped from the latter's hand and was picked up by Kettles and found to be still hot from its recent use. Neither Kennel nor Kettles was present when the first shots, which proved fatal to Fantry, were fired, but Kennel arrived in time to see that Moynihan was shooting from a revolver in the direction of a table at which Fantry had been seated, and that several men were under the table firing from loaded revolvers in the direction where Moynihan and his companion were standing. A most important fact in the case is that the waiter who served the beer at Fantry's table testified that the first shot fired came from the direction of a table at which three men were seated, but that he was unable to identify any of them. The testimony of this witness as to when and how the shooting started was not controverted, nor is there any testimony or circumstance in the case which would justify the inference that Fantry and his companions were the aggressors. On the contrary, the undisputed testimony in the case is that the attack made upon the party seated at the table with Fantry was unprovoked, and that it was only after the attack had been made upon them that they dropped to the floor and from under the table began to fire upon their assailants.

"Moynihan, in his defense, denied that he participated in the shooting, and that he had a revolver either in his hand or elsewhere on his person, and asserted that he did not know Fantry, which was uncontradicted, had no motive for wishing or causing his death, and that he (Moynihan) was falsely accused of being connected with the shooting by Kennel the detective, and was the victim of the latter's overzealousness.

"The alleged errors upon which counsel of plaintiff in error seek to reverse the judgment on review relate solely to the judge's charge, to which a general exception was taken, and are made the basis of the assignments of errors and specifications of causes for reversal.

"First, counsel of plaintiff in error, in their brief, argue that the court erred in eliminating from the consideration of the jury the question of manslaughter; that under the evidence, if the jury believed Moynihan's story, he was entitled to an acquittal, but if the jury disbelieved his story, which they did, they could properly convict him of one of the degrees of murder or conclude under the evidence that he unlawfully killed Fantry without malice aforethought, expressed or implied, in a heat of passion, due to adequate provocation from the excitement incident to a sudden brawl or combat.

"This contention of counsel is manifestly based upon a misconception of the evidence in the case and of the legal effect of the nature of the defense set up by the defendant to the accusation against him. Bearing in mind that...