State v. Scott

• Decision Date: 14 May 1928
• Docket Number: No. 62.,62.
• Citation: 142 A. 7
• Parties: STATE v. SCOTT.
• Court: New Jersey Supreme Court

142 A. 7

STATE

v. SCOTT.

No. 62.

Court of Errors and Appeals of New Jersey.

May 14, 1928.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Essex County.

Harry Scott was convicted of first degree murder, and he brings error. Affirmed.

J. Victor DAIoia, of Newark (Harold Simandl, of Newark, of counsel), for plaintiff in error.

Joseph L. Smith, Prosecutor of the Pleas, and Joseph E. Conlon, Asst. Prosecutor of the Pleas, both of Newark, for the State.

TRENCHARD, J. The plaintiff in error was indicted for the murder of one Lorenza Robinson on July 3, 1927. The jury found him guilty of murder in the first degree, with a recommendation of life imprisonment.

Briefly stated, the case of the state was that this woman (decedent) was the mistress of the defendant; that she had left him; that, after threatening to kill her, he went to the house where she was and deliberately fired four shots from a pistol into her body, killing her. His defense, as exhibited by his testimony, was that, while he was in the house where the shooting occurred, talking to the Robinson woman, one Essley Jones, who was another lover of this woman, came to the room, pushed the woman aside, and grabbed hold of the defendant with one hand, at the same time putting his other hand in his hip pocket; that the defendant, believing his life was in danger from Jones, drew his own automatic pistol; that Jones grabbed the hand that held it, and in the struggle for its possession the pistol went off accidentally, discharging the bullets into the body of the decedent.

We now proceed to examine such of the assignments of error and causes for reversal as have been argued.

The first contention is that the trial court erroneously permitted evidence showing the relations of the defendant with one Anna James after the killing was committed. Assuming, without deciding, that this was incompetent testimony, counsel does not attempt to show that its admission was, or might have been, prejudicial to the defendant in making his defense on the merits, and unless it had that effect (which plainly it did not), the action of the trial court affords no ground for reversal. State v. Yarrow (N. J. Err. & App.) 141 A. 85.

It is next said that the court erred in refusing to permit a pistol expert to testify in how many seconds could six or seven shots be fired if the hand holding the pistol is "gripped" by another hand and there was a struggle to get the pistol. It is true that the court originally refused to permit this testimony, but immediately thereafter substantially the same question was put to the same witness and was answered. That, of course, cured the error, if it was an error. Dayton v. Boettner, 82 N. J. Law, 421, 81 A. 726.

The next point is that the court erred in charging the jury that, "Even if the circumstances be such as to require the use of force to repel the assault, he would be inexcusable if he carried his defense beyond the bounds of reasonable necessity or the reasonable appearance of necessity." The latter clause of this instruction is criticized as erroneous in law. It is enough to say that it appears to be in substantial compliance with the true rule, which was laid down in State v. Bonofiglio, 67 N. J. Law, 239, 52 A. 712, 54 A. 99, 91 Am. St. Rep. 423.

It is next contended that the trial judge erred in defining murder in the first degree. Not so. He instructed the jury that, "If defendant's intent was to kill the deceased girl and the killing was willful and deliberate and with premeditation, then he is guilty of murder in the first degree." That instruction certainly comprehended all of the essential elements of that crime. He then added that by "willful was meant voluntary, of his own will." The defendant's criticism of that latter statement is without merit. The word "willful" means intentional; what a man wills to do. And certainly the trial judge's definition of the crime in question was not in any way prejudicial to the defendant, since the defendant in effect admitted doing the fatal shooting, but testified that the shots were fired...