State v. Neary, 121.

• Decision Date: 03 February 1930
• Docket Number: No. 121.,121.
• Citation: 148 A. 608
• Parties: STATE v. NEARY et al.
• Court: New Jersey Supreme Court

148 A. 608

STATE

v. NEARY et al.

No. 121.

Court of Errors and Appeals of New Jersey.

Feb. 3, 1930.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Union County.

Canice Neary and another were convicted of murder in the first degree, and they bring error. Affirmed.

George E. Cutley, of Jersey City (James P. Dolan, of Jersey City, of counsel), for plaintiffs in error.

Abe J. David, Pros, of the Pleas, and Walter C. Tenney, Asst. Pros, of the Pleas, both of Elizabeth, for the State.

TRENCHARD, J. The grand jury of Union county found an indictment against Canice Neary, William Fanning, Daniel Grosso, Frank Kiekart, and Benjamin Hass for the murder of John Enz, the driver of a mail truck, on October 14, 1926.

There was a severance, and the trial proceeded against Neary and Fanning alone, before a jury and the common pleas judge who had been requested to hold the Oyer and Terminer Court for that purpose pursuant to chapter 248 of the Laws of 1928.

The defendants Neary and Fanning, upon this their separate trial, were convicted of murder in the first degree, with a recommendation of life imprisonment, and such a sentence was imposed.

At the trial the evidence reasonably tended to show that the defendants Neary and Fanning, together with Grosso, Kiekart, and Hass (who were indicted but not then on trial, and two others (Cuniffe and Crowley who are dead and were not indicted), met in the city of Elizabeth and conspired and planned to rob the United States government mail truck driven by the decedent; that a few days later, armed with revolvers, sawed off shotguns, and machine guns, they executed that plan by holding up the truck and robbing it of many thousand dollars in money, and in the perpetration of that robbery killed the decedent, the driver of the truck, all of such named persons being present aiding and abetting in the robbery. The defendants on trial sought to establish an alibi as a defense.

The assignments of error and causes for reversal, each eight in number, are identical.

The only question raised by the first, second, and fourth assignments of error is a challenge of the legal propriety of questions asked Kiekart (called by the state) about meeting and talking with Cuniffe about the proposed robbery.

The objections were that Cuniffe was not mentioned in the indictment and that the indictment did not charge conspiracy to commit murder. But that was immaterial.

Upon the trial of an indictment for murder committed in perpetrating the robbery of a mail truck, the testimony of one of the participants, who was present aiding and abetting in the robbery, as to a conversation prior to the robbery with another of the participants, who was also present aiding and abetting, but not indicted because dead, about robbing the truck, was not rendered inadmissible by the fact that the dead man was not indicted, nor by the fact that the indictment did not charge a conspiracy to commit murder, See cases collected in 16 C. J. p. 654, § 1296, and 16 C. J. p. 647, § 1824.

The third assignment relates to the admission in evidence of a machine gun used in perpetrating the robbery and of the mail pouch which contained the money carried away by the robbers.

The objections were ill founded in law. They were that the machine gun belonged to Cuniffe, who was not named in the indictment, and that the mail pouch was found in the absence of the defendants.

Certainly upon the trial of an indictment for murder committed, as here, in perpetrating a robbery of a United States mail truck, a machine gun used in the robbery, and the mail pouch containing the money which the robbers carried away, were admissible in...