State v. Sage

• Decision Date: 19 November 1923
• Docket Number: No. 110.,110.
• Citation: 122 A. 827
• Parties: STATE v. SAGE.
• Court: New Jersey Supreme Court

122 A. 827

STATE

v. SAGE.

No. 110.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

Parker, Kalisch, and Katzenbach, JJ., dissenting.

Error to Court of Oyer and Terminer, Hudson County.

Frank Sage was convicted of murder in the first degree, and he brings error. Affirmed.

Richard Doherty, of Jersey City, for plaintiff in error.

John Milton, Prosecutor of the Pleas, and George T. Vickers, both of Jersey City, for the State.

BLACK, J. Frank Sage, the plaintiff in error, was convicted of murder in the first degree, without recommendation for life sentence by the jury, for killing John J. Black, a police sergeant of Jersey City.

The facts leading up to and surrounding the killing of Black by Sage, the plaintiff in error, as disclosed by the record, are thus summarized: On November 18, 1921, Sage was sentenced on a plea of non vult, to an indictment for entering and larceny, to the state prison by the Passaic quarter sessions. On July 7, 1922, he with other prisoners were sent to help the prison driver in the performance of some duty. He eluded the latter while so engaged and did not return to the prison. On May 22, 1923, he was living at No. 19 Manhattan avenue, Jersey City, with a woman not his wife, by the name of May Miller. The prison authorities, as is the custom, sent out to all police departments what is called a fugitive's card, showing the photograph of Sage, his description, the fact of his escape, the crime for which committed, and notice that a reward for his capture is offered. At this time there was also in existence an unexecuted warrant against Sage charging him with highway robbery, a stick-up of the public service pay roll, at the town of West New York. This warrant was in the hands of the police authorities of West New York for execution, one of whom was Otis. Otis testified he saw the warrant. On the morning of May 22, 1923, at about 5:30 a. m., Lieut. Otis, Sergt. Black, Police Officers Weir, Walton, Dondon, and Detective Connalin, drove to No. 19 Manhattan avenue, Jersey City, Weir being in uniform; all the others were in citizens clothes.

Then, upon inquiry, learning from the owner and occupant of the house that a man resembling the picture on the fugitive's card, exhibited to him by Officer Otis, was occupying rooms on the second floor of the house, Otis, Black, and Weir proceeded upstairs to the door of the apartment indicated by the owner. The other three men were ordered to guard the front, back, and side of the house. The only eyewitnesses to the shooting were Officer Otis, Sage, the plaintiff in error and his companion, May Miller. What happened may best be told in their own language from the record, thus:

Lieutenant Otis testified they put their guns away, as directed by Black, as they were going upstairs. "Black knocked at the door. Q. What happened? A. And some one said, 'Who is there?' He said, 'We are police officers from police headquarters, and you will do.' She said, 'Wait a minute and I will get some clothes on.' Q. Now, then, what was the next thing happened? A. Well, she opened the door. Q. And when she opened the door, what happened then? A. Well, I looked towards Black to see what he was going to say, and no more than I looked at Black two shots were fired, bang! bang! like that."

The plaintiff in error, Frank Sage, testified that he did not hear the above conversation between the police officers and May Miller; that he was standing at the dresser when the door flew open. "As the door flew open I seen a form there, a man's arm come up with a revolver. * * * I bent over and reached for the drawer for my gun. Q. What did you do? A. I pulled it out quick as the form seemed to move—another form—and I fired one shot. Q. Then what did you do? A. As I fired the one shot, I advanced toward the bed, I should judge about two or three foot, and as I did I fired two more shots." He then fired a shot at a man he saw in the yard, Walton, one of the police officers.

May Miller testified: "After I heard these men I got up; started to dress myself. Q. Got out of bed? A. Got out of bed and dressed myself. Q. Yes? A. And then I went to the door, pushed back the bolt from the door, and turned the key. As I put my hand on the door to open it, the door was pushed open quickly and a shot was fired immediately, which powder went into my eyes, across my eyes, and hurt my eyes, and put my hand to my eyes, and in the meantime there were three more shots fired, and then everything was quiet. I do not know where any of the shots came from."

Sergeant Black and Police Officer Weir were killed by two of the shots. Lieutenant Otis and Police Officer Walton were wounded. The plea was self-defense by Sage. May Miller was tried with Sage and acquitted by the jury. There are 53 assignments of error and 23 specifications of causes for reversal filed. They are argued under 14 heads in the brief of the plaintiff in error. Points not argued are presumed to be waived or abandoned, and therefore will not be discussed. Reinfeld v. Laden (N. J. Sup.) 121 Atl. 445.

The first four points require no discussion, because it clearly appears to us from a reading of the testimony that, even though competent testimony was excluded by the court or improper testimony was admitted, it was harmless, in view of the fact that the plaintiff in error himself, upon the witness stand, admitted the shooting of Sergeant Black and the firing of several more shots; and he admitted that he had escaped from the state prison, when he was confined on a charge of entering and larceny.

The rule is that, when it clearly appears that the admission or rejection of such testimony could not have injuriously affected the defendant on the merits of the case, It does not constitute a ground for reversal of the judgment. Genz v. State, 59 N. J. Law, 488, 37 Atl. 69, 59 Am. St. Rep. 619; Hunter v. State, 40 N. J. Law, 543. In addition to the existence of error in law, it must be shown that such error was, or might have been, prejudicial to the defense on the merits. Id. Lamble v. State, 96 N. J. Law, 235, 114 Atl. 346.

The next point is No. 5: The court erred in admitting in evidence articles alleged to have been found in the rooms of the plaintiff in error, after his arrest, consisting of percussion caps, a black-jack, dynamite, two guns, etc. These articles were properly admitted in evidence under the rule laid down in the cases of State v. Laster, 71 N. J. Law, 586, 60 Atl. 361; State v. Barone, 96 N. J. Law, 417, 115 Atl. 668. The condition existing at a place where a homicide was committed is always the subject of proof. They afforded some explanation of the defendant's conduct, in resisting the officers who had come to arrest him. His possession of the articles tended to show criminality on his part; that is, a killing committed for the purposes of preventing the discovery of these articles by the police.

The next point is No. 6: The court erred in permitting the state to abandon a count in the indictment for manslaughter, and in failing to charge the jury respecting that particular crime. The state had a right to abandon that count. It was not error for the court not to charge on the crime of manslaughter (State v. Fiore, 93 N. J. Law, 362, 108 Atl. 363, and cases there cited), under the facts of this case.

The next point is No. 7: There was error in the court's instruction, as to the required duration of willfulness, deliberation, and premeditation. The criticism is aimed at a single sentence, a single word in the charge detached from the context, viz. "at any moment before or at the time the shots were fired." The word "at" is the subject of the criticism. To appreciate fully the meaning of the sentence, It must be read in connection with the entire passage of the charge in which it occurs; that passage of the charge complete is as follows:

"It is said, in one of the decisions of our highest court, in dealing with this subject, that an unlawful killing does not amount to murder in the first degree, unless it should be found by the jury that the accused contemplated the killing, that is, premeditated it, then determined upon the killing, that is, intended it, then weighed such intent before carrying into effect, that is, deliberated upon it. But, while 1 have dealt with these terms, willful, deliberate, and premeditated, in such a way as to indicate to you that they signify, as they do, three separate and distinct functions or operations of the human mind engaged in the premeditation of the killing, I do also charge you that the taking place of these functions of the human mind does not require necessarily any prescribed period of time, but that the mental acts to which I have referred are capable of being performed with that degree of speed with which the human mind is proverbially capable of acting. In other words, premeditation and intent to kill need not be for a day or an hour or even a minute, for if you, gentlemen of the jury, believe there was a design and a determination to kill distinctly formed in the minds of these defendants or either of them at any moment before or at the time the shots were fired, which design was deliberately and with premeditation carried out, it was a willful, deliberate, and premeditated killing, and therefore murder in the first degree."

In State v. Banusik, 84 N. J. Law, 640, 64 Atl. 998, decided by this court in 1906, the criticism as in this case was aimed at a single portion of the...