State v. Stephan

• Decision Date: 22 September 1937
• Docket Number: No. 59.,59.
• Citation: 194 A. 273,118 N.J.L. 592
• Parties: STATE v. STEPHAN.
• Court: New Jersey Supreme Court

194 A. 273

118 N.J.L. 592

STATE

v. STEPHAN.

No. 59.

Court of Errors and Appeals of New Jersey.

September 22, 1937.

Syllabus by the Court.

1. In order that a defendant in a criminal cause may have the benefit of section 130 of the Criminal Procedure Act (2 Comp. St.1910, p. 1803, § 136), the trial court must, in addition to the formal and ordinary return to a writ of error, certify that the proceedings transmitted by him to the court of review comprise the entire record of the proceedings had upon the trial.

2. Where a dying declaration is offered in evidence, the preliminary question of fact, whether the declarant was under a sense of impending death, is for the determination of the trial court, and its finding, if supported by any legal evidence, is not reviewable by ordinary writ of error.

3. Res gestaa includes those circumstances which are the undesigned incidents of a particular litigated act. They may be separated from the act by a lapse of time more or less appreciable and may consist of speeches by anyone concerned, whether participant or bystander. They may comprise things left undone as well as things done. They must be the necessary incidents of the litigated act in this sense that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors.

4. It does not constitute a good cause of challenge to a juror, that he has formed and expressed an opinion of the guilt of the prisoner, founded on his knowledge of the facts, or upon information supposed to be true. A declaration of opinion, to disqualify a juror, must be such a one as implies malice or ill will against the prisoner.

5. A witness testified to having been taken through certain streets, the names of which she did not know, but which she identified later when taken through them again, and so stated to her companions on the second and third occasions. Held, that the testimony of those companions as to the names of the streets so identified was not obnoxious to the hearsay rule.

6. Impatient comment of a juror about "wasting time" held no ground for reversal.

7. A specification of a cause for reversal directed to a passage in the charge, which does not reproduce the language, is insufficient.

8. Language of a portion of the charge considered and held not to present any inconsistency requiring reversal.

BROGAN, Chief Justice, HEHER and PERSKIE, Justices, and RAPFERTY, Judge, dissenting.

Error to Camden Quarter Sessions.

William John Stephan was convicted of murder in the first degree, and he brings error.

Affirmed.

John L. Morrissey, of Camden (E. George Aaron, of Camden, of counsel), for plaintiff in error. Samuel P. Orlando, Pros, of the Pleas, of Camden, for the State.

PARKER, Justice.

The plaintiff in error was indicted by the grand jury of Camden county for the murder of Curtis W. Dobbins, and was convicted of murder in the first degree without recommendation of life imprisonment. The case is before us on strict writ of error, and was argued as though here also under section 136 of the Criminal Procedure Act (2 Comp.St.1910, p. 1863, § 136). But there is no certificate by the trial court of "the entire proceedings had upon the trial" of the cause, as required by our decisions. The formal return of the record on writ of error does not suffice. See, for example, State v. Clark, 75 N.J.Law 473, 68 A. 114, citing prior cases; State v. Webber, 77 N.J.Law 580, 72 A. 74; State v. Timmerari, 96 N.J. Law 442, 115 A. 394; and State v. Mason, 113 N.J.Law 364, 174 A. 702, where other cases are cited. The review is therefore limited to matters available on strict writ of error.

For reasons that will presently appear, a conviction of murder in the second degree would be supported by the evidence conceded to have been properly admitted at the trial. But the state pressed for, and the jury returned, a verdict of murder in the first degree, on the theory that the killing was done "in perpetrating or attempting to perpetrate" a robbery. Crimes Act, § 107, 2 Comp.St. of 1910, p. 1780, § 107, as amended by P.L.1917, p. 801 (Comp. St.Supp.1924, § 52—107). Much of the argument is devoted to the evidence on this point, and the propriety of its admission. Weight of evidence is not argued, and indeed is not available on strict writ of error.

The state's theory of the homicide was that defendant, armed with his own revolver, rang the doorbell of Dobbins' house at about 10:45 p. m. of August 11, 1936; that Dobbins went to the door and opened it, to confront defendant standing with an aimed revolver, and saying, "Stick 'em up"; that Dobbins attempted to escape or dodge, and defendant shot three times, one bullet taking effect in the body of Dobbins, who was nevertheless able before collapsing to telephone to the police, who hastened to the scene, arriving in about five minutes after the shooting, and were told by Dobbins what had happened; that Dobbins was taken to the hospital and died early in the morning of August 17. At the hospital he made a statement a few hours before his death to the attending physician, as to the circumstances of the shooting. This statement was admitted by the court over objection and exception, as a dying declaration; and statements of deceased to the police at the house after the shooting and on the way to the hospital were similarly admitted, on the theory of res gestae. Both rulings are claimed to be erroneous.

The fact of the shooting, and that it was by the defendant, was adequately, though circumstantially, proved without necessity of resort to any statement by the deceased by way of confession. It appeared that defendant, who lived in Camden and worked in Philadelphia, had an automobile, the license plates of which were changed after the shooting; that prior to the shooting he had been heard to say that he had pulled off small jobs and they had not caught him and there was a certain place in Haddonfield that he was going to pull; that on another occasion one of his young woman friends had expressed in his presence a wish for a fur coat, and that defendant had said in substance that it was easy, a couple of steel slugs would do it, all that was needed was to go into a store and tell them to "stick them up," and so on; that he was out with the car that evening in New Jersey, ostensibly "selling sheets" for his employer; that he had a woman with him, who testified at the trial; that they stopped at various drinking places and at a brickyard, and finally in a, side road, near the house where Dobbins was shot, identified by this woman witness from the picture in the newspaper and again on the ground after the murder; that she fell asleep and was wakened by a noise like a back-fire and the slamming of a door (at another place the witness said "or" instead of "and"); that defendant was in the car alongside her and she told him to get started as it was late; that they went to a diner, where a police officer looked at them queerly; then over the ferry to Philadelphia. The revolver was found in a stove at defendant's lodgings, and when found was empty. Defendant admitted to the prosecutor of the pleas that the revolver was his, that he must have fired it, but remembered nothing about doing so. Expert testimony indicated that the bullet that wounded deceased, and the two other bullets found in his house, were fired from that revolver. The jury were therefore fully justified in finding that the defendant did the killing; and such killing was presumptively murder, State v. Silverio, 79 N.J.Law 482, 76 A. 1069; but without more, murder in the second degree, Brown v. State, 62 N.J.Law 666, 42 A. 811. The trial court so charged. To support a conviction of murder in the first degree, it was incumbent on the state to show by legal evidence, either that the killing was willful, deliberate, and premeditated, which there was no attempt to show, except incidentally as above; or that it occurred in the perpetration of, or attempt to perpetrate, one or more of the other crimes mentioned in section 107 of the Crimes Act, supra; in this case, robbery. See State v. Hauptmann, 115 N.J.Law 412, 180 A. 809. It was to this latter that the "res gestae" and "dying declaration" testimony was pertinent; and it is to this testimony that the principal argument is directed.

Taking up the matter of the "dying declaration" first: Dr. Davis, the attending physician at the hospital, testified that at the time of the statement, the condition of the patient was "very poor."

"Q. Did he say anything which would indicate knowledge on his part? A. Yes, we had given him a transfusion and he said, 'Stan, I don't think I am going to make it,' he said 'I feel myself getting weaker,' and of course, we didn't tell him that he was, but we told him that he was all right, we were going to give him another transfusion Monday, just so he wouldn't think that he was going to die, although he did tell us that he thought he would die.

"Q. When did he tell you that, before or after the transfusion? A. After.

"Q. About that time did you have any conversation with him in which he stated what had happened"? Objected to as not within the rule; the court opined that it was, but permitted cross-examination, which was as follows:

"By Mr. Morrissey: Q. You say he talked to you concerning his condition prior to making any statement, is that true? A. Yes.

"Q. What did he say concerning his own physical condition? A. He said. 'I feel myself getting weaker and I don't think I am going to make it.'

"Q. Did he say that he knew he was going to die? A. He felt that he was going to die.

"Q. He wasn't certain of it, was he? A. Yes, he seemed to be pretty sure.

"Q. Did you try to cheer him up about it? A. Yes, It didn't seem to work.

"Q. What did you say to him? A. I said, 'Oh, don't worry about that, Curt; you always have a few rough days before you get well,' but it didn't console him much.

"Q. What answer...