State v. Pulley

• Decision Date: 04 March 1912
• Citation: 82 A. 857,82 N.J.L. 579
• Parties: STATE v. PULLEY.
• Court: New Jersey Supreme Court

82 A. 857

82 N.J.L. 579

STATE

v. PULLEY.

Court of Errors and Appeals of New Jersey.

March 4, 1912.

Error to Court of Oyer and Terminer, Monmouth County.

Henry Pulley was convicted of first-degree murder, and he brings error. Affirmed.

John W. Slocum and William L. Edwards, for plaintiff in error.

John S. Applegate, Jr., Prosecutor of the Pleas, for the State.

GUMMERE, C. J. The defendant was Indicted by the grand jury of Monmouth county for the crime of murder; the felonious act being the killing of his wife by shooting her with a revolver. The trial of the defendant on the indictment resulted in a verdict finding him guilty of murder in the first degree; and the validity of the judgment entered upon that verdict is now attacked for errors asserted to have been committed by the court below at the trial. With one exception the alleged errors are to be found in the charge to the jury. In order to understand the bearing of the portions of the charge which are complained of, a brief recital of the testimony in the cause is necessary.

The defendant, with his wife, occupied the lower portion of a house at Long Branch. On the evening of the shooting two friends of his wife (Jennie Carter and Arthur Berry) called at her home to see her. They arrived about 10 o'clock, and remained until about 12. At the beginning of the visit, the defendant was not at home, but came in shortly before midnight, accompanied by one Mary Matthews, who lived in the upper portion of the house, being a tenant of the defendant. According to the testimony introduced by the state, the defendant, as they entered the room, was demanding unpaid rent from the Matthews woman, who referred him to her husband for its payment. The defendant was admittedly intoxicated, but was able to walk straight. He went through the room in which the visitors were sitting into the bedroom, which adjoined it, and then came back. Upon his return to the room where his wife and her guests were sitting, he asked her to move a baby carriage which stood between him and a box upon the top of which his revolver was lying. This she refused to do, and, having addressed an obscene remark to her, he moved the baby carriage himself, and took his revolver from the top of the box. He then began pointing it about the room, snapping it twice as he did so, and saying: "I want to see if it will go off." The second time it was snapped it was pointed at Berry; but on neither occasion did it explode. Berry asked the defendant if the gun was loaded, and he replied that it was. Berry then said, "Don't point it this way," to which the defendant answered that he would turn it any way he wanted and shoot anything (or at everything) in there. The above recital of facts is taken from the testimony of Berry and Jennie Carter, who were produced as witnesses by the state. Almost immediately after this last remark of the defendant, both of these witnesses ran out of the house into the yard, and to the front gate. Just as they reached the gate they heard the report of defendant's pistol. Mary Matthews, who remained in the room until after the shooting occurred, and who also testified in behalf of the state, said that after Berry and Jennie Carter went out the defendant's wife got up from her seat, and stood in front of the defendant; that he was then standing in the doorway between the two rooms, and that they were about two feet apart; that, as his wife stood in front of him, he said, "I am going to shoot;" that when he said that the gun was pointed at her, and was immediately discharged; that she threw up her hands, and said, "I am shot," and then fell. Immediately after the shot was fired the Matthews woman, she says, "went out the door." The defendant offered himself as a witness in his own behalf, and his story of the shooting is as follows: Upon his return home he saw the man Berry sitting near the box upon which his pistol lay. Thinking that Berry was likely to take the gun, he went to the box and got it himself, and started toward the bedroom with it. His wife followed him, and shoved him, and grabbed his hands, and made two or three "wrings" on the gun, and said: "You are not going out no more." He replied: "I ain't going out." She then made another "wring," and the gun went off and shot her. He denied that he had pointed the pistol at either Berry or Jennie Carter. He also denied that he had pointed it at his wife, and declared that he had no intention whatever of shooting her.

The defendant's revolver was found by the police at his home about two hours after the shooting. It contained two empty cartridges, one of which, from its corroded condition, appeared to have been discharged some time previously. The other apparently had been freshly discharged. It also contained three loaded cartridges, two of which showed indentations which appeared to have been made by the striking of the hammer of the pistol upon the cartridges.

Upon the proof submitted the trial judge instructed the jury that if they believed the shooting occurred in the way described by the defendant, without any intention on his part to inflict bodily harm, or to kill, then it was their duty to acquit. He then instructed them that, if they did not believe the story of the defendant as to how the shooting took place, they should then take up the consideration of the question whether the defendant discharged the pistol with intent to kill or to do serious bodily harm, and then explained to them what constituted murder in the first degree, what murder in the second degree was, and what constituted the crime of voluntary manslaughter, concluding this statement with relation to the latter crime with the remark that "there would seem to be no middle ground in this case which would reduce the crime from murder in the second degree to that of manslaughter." He concluded his charge as follows: "If you find the defendant guilty, you must designate in your verdict of what degree you find him...