State v. Turco

• Decision Date: 19 November 1923
• Docket Number: No. 108.,108.
• Citation: 122 A. 844
• Parties: STATE v. TURCO.
• Court: New Jersey Supreme Court

122 A. 844

STATE

v. TURCO.

No. 108.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

Error to Court of Oyer and Terminer, Sussex County.

Antonio Turco was convicted of murder in the first degree, and he brings error. Affirmed.

Sec, also, 118 Atl. 579.

Egbert Rosecrans, of Blairstown, and William A. Dolan, of Newton, for plaintiff in error.

Theodore E. Dennis, Prosecutor of the Pleas, of Hamburg, Lewis Van Blarcom, of Newton, Michael Dunn, of Paterson. and Sylvester C. Smith, Jr., of Phillipsburg, for the State.

WALKER, Ch. The defendant was convicted of murder in the first degree in the Sussex oyer and terminer and brings error directly into this court. The certificate of the trial judge is not technically correct. It omits the common-law return of the record "with all things touching and concerning the same," but it is certified that "the entire record of the proceedings had upon the trial," under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), is returned, and we have considered the entire record upon its merits.

The argument for the defendant is made under seven heads. The first is that the names of all jurors were not placed in the box together at the time the drawing commenced.

At the opening of the term 48 jurors were drawn. Later, the court ordered that 24 additional talesman be drawn in the manner provided by law. This was done, and the defendant was served with a copy of the indictment and the panel of 48 jurors, Including the additional 24. At the trial the 48 names were placed in the box, and when they were exhausted without 12 traverse jurors being selected, the names of the 24 talesmen were put in and the drawing proceeded from that number until the jury was complete. This in no wise conflicted with any of the provisions of section 82 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1847). The specific objection is that the additional 24 names were not in the box at the time the drawing commenced. There is no statutory provision that they should be.

Counsel for defendant relies upon the cases of State v. Lapp, 84 N. J. Law, 19, 86 Atl. 62, and State v. Rombolo, 89 N. J. Law, 565, 99 Atl. 434. In the Lapp Case the error consisted in this: When all the names had been drawn out of the box, the court ordered the sheriff to call in talesmen, and a talesman so called took his seat. The sheriff then informed the court that the names of some of the regular panel had not been in the box at all during the drawing of the jury. The court ordered these names to be put in the box and the drawing to proceed. When the first name was drawn, an exception was prayed and allowed to the defendant. The talesman who had been called and had taken his seat was ordered off the jury, and a juror whose name was drawn out of the box was substituted over the objection of the defendant, who took exception upon the ground that his challenges had been exhausted; and it was held that the defendant's right is taken from him if, after he has exhausted his challenges, new names are for the first time put in and drawn out of the box. That is not this case. Here the special panel served was in the box and afterwards the talesmen served were put in. It is sufficient if the panel from which the traverse jury may be chosen is put in the box in the first instance. The names of the talesmen should not be put in unless and until they are required by exhaustion of the regular panel without a traverse jury being obtained. In State v. Rombolo there were only 36 names of the special panel in the box, and this was held not a compliance with the statute. In the case at bar 48 names had been served but were exhausted, then the names of the talesmen who had been served were put Into the box, and the balance of the jury was drawn from them. There is no statute requiring that the lawful panel of 48 and the talesmen shall be put into the box together. There was no error on this head.

The second point is that the challenge of the juror Frank Paddock was improperly denied. He answered on his voir dire that he had formed an opinion that the defendant was guilty, but said that he would be* guided by the evidence in reaching a verdict. There was nothing to show that his opinion implied malice or ill will against the prisoner. And in this state it has never been ground of challenge to a juror that he has formed an opinion concerning the prisoner's guilt, so long as he declares his ability to consider the case on the evidence. Wilson v. State. 60 N. J. Law, 171, 37 Atl. 954, 38 Atl. 428.

The third point is that the court erred in charging the jury that they must convict the defendant of murder in the first degree or acquit him. The fourth point is involved with this: It is that the robbery was complete before the time of the killing. To a proper understanding of these points—they are really one—a short resume of the facts is necessary. They are: That on the night of June 13, 1921, the defendant Turco, with ten others, came to Byram township, Sussex county, with the intention of holding up and robbing a truck of the Sussex Print Works, and he (Turco) and the other conspirators went to a point on the highway leading from Newton to Stanhope, and lay in wait until Tuesday morning, June 14th. The locality is known as the "Cat Swamp" and is a lonely place. A truck of the print works, containing silk and copper rollers valued at upwards of $9,000, left Newton and was proceeding to Passaic in charge of a driver and his helper, when six armed and masked men, including Turco, rushed from the underbrush, about 6:30 a. m., and at the point of their pistols compelled the driver to stop. They took him and the helper from the truck, and four of the men rushed them off the road and up the steep bank of a hill and into the woods, where they held them captive for several hours. After the two men had been removed from the truck, the defendant Turco and one of the conspirators took charge of the truck and drove it to an open space, where they backed it off the road, with the intention of turning around. While it was stationary, Albert Koster, the deceased, appeared, coming along the road riding a motorcycle on his way to work in Stanhope.

Turco, the defendant, was at this time standing on the ground near the truck. He stepped out into the road with a pistol in his hand and ordered Roster to stop. He applied his brakes and made every effort to stop, and as he approached the defendant the motorcycle was moving slowly; but when he reached a point in front of the truck Turco fired his pistol at him. The first shot was apparently not fatal, and Turco then placed his left hand on Koster's shoulder, and bringing his motorcycle to a complete stop, fired at him twice; the last bullet passing through his heart and killing him. Immediately after the murder the other man, under the directions of Turco, drove the truck away in the direction of Easton.

The object and purpose of the conspiracy in this case was through robbery to seize the truck and run it to Easton, Pa., and distribute the silk in some portions among themselves. Clearly the killing of Koster by Turco in the circumstances above detailed was murder in the first degree according to our statute. Comp. Stat. vol. 2, p. 1779, §§ 106, 107.

In 29 Corp. Jur. 1117, § 101, It is stated that where killing in the perpetration or attempt to perpetrate a felony, or one of certain enumerated felonies, is made murder in the first degree, the perpetration, or attempt to perpetrate, the felony, is regarded as standing in the place of, or as the legal equivalent of, the willfulness, deliberation, and premeditation necessary under the statute as to other killings, and dispenses with the necessity of proof thereof.

In Whart. on Homicide (3d Ed.) p. 668, § 438, it is laid down that where several persons combine and conspire together for the common object to commit robbery, and in pursuit of that object one of them does an act which causes the death of a third person, each and all are principals, and each and all may be convicted of murder, usually in the first degree under the statute.

In Conrad v. State, 75 Ohio St 52, 78 N. E. 957, 6 L. R. A. (N. S.) 1154, 8 Ann. Cas. 966, it was held that where one starts to carry out the purpose to commit a robbery, and kills another under circumstances so closely connected with the crime which he has undertaken as to be a part of the res gestae thereof, he is guilty of murder in the first degree within the meaning of the statute, whether the crime which he originally undertook has been...