State v. Murphy

• Decision Date: 22 June 1915
• Docket Number: No. 1.,1.
• Citation: 94 A. 640,87 N.J.L. 515
• Parties: STATE v. MURPHY.
• Court: New Jersey Supreme Court

94 A. 640

87 N.J.L. 515

STATE

v. MURPHY.

No. 1.

Court of Errors and Appeals of New Jersey.

June 22, 1915.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Burlington County.

Edgar C. Murphy was convicted of murder in the first degree, and brings error. Affirmed.

Francis J. Smith, of Camden, and Francis Tracy Tobin, of Philadelphia, Pa., for plaintiff in error. Samuel A. Atkinson, Prosecutor of the Pleas, and Robert Peacock, both of Mt. Holly, for the State.

WALKER, Ch. The plaintiff in error, Murphy, was convicted of murder in the first degree at the October term, 1914, of the Burlington oyer and terminer, and brings error.

The entire record of the proceedings had upon the trial is brought up under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), and he specifies 11 causes for reversal under section 137. They were argued under six heads, as follows: (1) The admission of the testimony of Charles Wilhelm, given at the coroner's inquest, it having been shown that he was dead at the time of the trial; (2) the admission of the testimony of Hilda (mentioned as Ida) Wilhelm, it being alleged that it was a conclusion of the witness as to why Murphy ceased his visits at the house; (3) that the confession of the defendant was not shown to be voluntary because the defendant was in custody, and the sheriff did not permit any one, including his attorney, to visit him until after the confession had been obtained; that it is the duty of the state to prove that the confession was voluntary; (4) in the admission in evidence of the cartridge shells found in the Murphy house, as it did not appear they belonged to the defendant, or were the same shells referred to in the confession, and also in the admission in evidence of the gun found in the room of the defendant, as there was no proof that it was the gun mentioned in the confession; (5) the refusal of the court to charge the jury that they should take into consideration the fact that the friends and family of the defendant were denied admission to the jail until after he confessed; and (6) the refusal to charge that if the jury believed the defendant was denied assistance of counsel, and that his counsel was refused permission to see him before the confession was made, that should be taken into consideration in giving credence to the confession, and that the jury must consider the fact that the defendant was denied the right, secured to him under the state and federal Constitutions, to be represented by counsel from the time of his arrest, in giving credence to the confession, and that no one was permitted to see him for several days, except the officers who secured the confession.

1. The prosecutor of the pleas offered the transcript of the testimony of Charles Wilhelm, given at the coroner's inquest, he having afterward died, and proved that the defendant was there present; that he was represented by counsel who cross-examined the witnesses. Objection was made to the admission of the testimony, on the ground that the cause was not an action in which the defendant was a party; that a coroner's inquest is an investigation on the part of the state alone, and there is no one who is the defendant. The evidence was admitted. The testimony of Wilhelm was relevant to the issue, but was merely cumulative upon an uncontroverted point. He stated: That he owned the place where he lived in Delran township, and was home the night of the tragedy; that Herman Fisher, the deceased, came to his house with his daughter Hilda and bid her good-bye at the door. That some time after that his daughter Florence came upstairs and said they heard some one shoot. That the girls claimed they heard a second shot. That he left the house with a loaded revolver, which he shot once because Herman and his brother had been frightened by a ghostlike appearance (some time before) and he had told them that if anybody tried to frighten them to shoot a revolver once, and he would answer it, and that is the reason he fired the shot. That he knew where Herman's body was found on Mrs. Hunter's place, a leisurely walk of about 8 or 10 minutes. That that was the way Herman used to go home. He went back to his own home and went to bed, and then George Fisher and Murphy, the defendant, came and roused him about half past 1. Asked what Murphy told him, he said he did not tell him anything, the first message they gave to his wife, who opened the door, and he heard that Herman was lying in the cornfield. Asked if Murphy told him that, he said Murphy and George Fisher were talking at the same time. He then ran to his neighbor, Mr. Wigmore, and called him. That while he was calling him his wife had been speaking to Fisher and Murphy to make sure the boy was dead, and they said: "Yes; they had lighted a match or something and he was perfectly dead." That he geared a team to go over to Mr. Llewellyn's, and when he came back he started off towards the place where Herman lay. That Mr. Fisher, the boy's father, was coming over toward him, and he went there with Fisher's father. The only cross-question was as to whether he went over and saw the body that night, and he replied that he did.

Now, it must be conceded that the only facts of any importance to the defendant which were testified to by Wilhelm at the coroner's inquest were that Murphy came to his house with George Fisher on the night of the tragedy, and either said or stood by when Fisher said, or joined him in saying (it does not clearly appear which), that Herman was dead, and that Wilhelm then went over to where the body was and saw it himself. That Herman Fisher was dead was proved beyond doubt. In fact Murphy's counsel, in arguing the cause before this court admitted that he had been foully murdered, but claimed that the defendant, Murphy, was not the murderer. George Fisher, a brother of the deceased, testified that on the night in question he was going in search of his brother and met Murphy going toward his (Murphy's) home; that Murphy went on home, got his revolver, returned, and joined him, George, and they came to where the body was lying in the bushes; that Murphy lit a match and by the light of it they saw the body, and after making this discovery they, George and Murphy, went to Wilhelm's house and called the inmates and told them the news. Ida Wilhelm, a daughter of the deceased witness, testified that George Fisher and Murphy came to their house that night and woke them up after they had gone to bed. Hilda testified to the same thing, as did Helen, Anna, and Florence. Mrs. Charles Wilhelm, the mother of the girls, testified that George Fisher and Murphy came to their house that night, and that she asked Murphy if he wouldn't go back and see if Herman was alive yet, and Murphy said:

"Oh, no, he ain't alive. I struck a match and his eyes are all stuck in. He is dead."

Thus it appears that seven witnesses, who are uncontradicted and unimpeached, established the fact of Murphy being at the Wilhelm house that night after the tragedy. And, besides, the corpus delicti was not only proved, but is admitted. Furthermore, the defendant himself in his confession corroborates the point. Assuming that the admission of the testimony given by Charles Wilhelm (since deceased) at the coroner's inquest was error, it was harmless. It is impossible to believe that it could in any sense have injuriously affected the prisoner on the merits of his defense. Therefore it becomes unnecessary to consider and decide whether the testimony, given by a witness at a coroner's inquest in the presence of the accused, who was represented by counsel who cross-examined the witness, which witness died between the date of the inquest and the trial of the accused, is admissible upon the trial of an indictment for murder upon the theory that such a proceeding is tantamount to a preliminary hearing of a charge against a defendant before a magistrate, conducted in his presence, where he was confronted with the witnesses and afforded an opportunity to cross-examine them, either by himself or with the aid of counsel.

Under our Criminal Procedure Act no judgment given upon an indictment shall be reversed, except for such error as shall or may have prejudiced the defendant in his defense upon the merits. Comp. Stat. p. 1863, § 136. See Hunter v. State, 40 N. J. Law, 495; Genz v. State, 59 N. J. Law, 488, 37 Atl. 69, 59 Am. St. Rep. 619. And where it clearly appears that testimony, illegally admitted in a criminal trial, could not have injuriously affected the defendant, the admission of such illegal testimony does not constitute ground for reversal. State v. Simon, 71 N. J. Law, 142, 58 Atl. 107. This testimony, even if harmful of itself, was, as already remarked, merely cumulative of other testimony to the same effect, which was uncontroverted.

Myers v. Weger, 62 N. J. Law, 432, 442, 42 Atl. 280, upon a cursory view, might seem to hold that evidence merely cumulative, which was improperly admitted, did not constitute injurious error, even though that evidence were cumulative upon a controverted point, but an examination of the opinion of this court will show that, in that case as in this one, the question upon which the illegal evidence was admitted was as to an uncontroverted fact. The Myers Case was a suit against a decedent's devisee for a debt contracted by the former in his lifetime, and, after proof was made of the existence of the debt itself, testimony was introduced that the decedent had delivered to the plaintiffs, as evidence of the debt, a promissory note which he had drawn to his own order, but had not indorsed. It was held that its reception in evidence was not injurious error, because unindorsed it proved nothing, and if it had been indorsed, its effect would have been merely cumulative.

Our Supreme Court in Van Riper v. Dundee Mfg. Co., 33 N. J. Law, 152, 156, defined cumulative evidence as additional evidence to support the same...