The opinion of the court was delivered by
Gummere, Chief Justice.
The plaintiff in error was indicted by the grand jury of Bergen county for the murder of one Frank Brannon, committed in an attempt to rob the American Bailway Express Company, Brannon being an employe of that corporation. The' trial resulted in a conviction.
Briefly, the important facts contained in the evidence submitted on the part of the state are as follows: A man named Palmer was employed by the express company at its Hackensack office as cashier. The superintendent of that office was one Talmadge. The only other employe located in this office at the time of the alleged murder, besides the superintendent and Palmer, was Brannon, the man who was killed. It appeared that Palmer had embezzled moneys of the express company, and that, in order to cover up his defalcations, he had entered into a scheme with certain parties, named Cuneo,
Corcoran, Strand and Lynch, to undertake a pretended hold-up, which would, apparently, justify him in surrendering the moneys of the company then in his charge to the parties engaged in it. It further appeared that he was to advise them when there would be enough money left at the company’s office to make this scheme worth while to them, and the day fixed was the 21st of January, 1926. On that day Cuneo, Corcoran, Strand and Lynch drove from the ferry at the town of Edgewater to Hackensack, and when they reached the express company’s office Strand and Lynch got out, leaving the other two in charge of the two automobiles in which the party had come. The company’s office was divided into two rooms, one used for the receipt and delivery of freight and the other as the business and financial department. Strand went through the door opening into this latter room, and stated to the superintendent, who was there, that he had come to arrange about expressing a trunk. In the meantime Lynch entered the door leading into the freight room. He found Brannon there, and no one else. According to the evidence on the part of the state, for some reason or other, he shot Brannon down, and then came through the door separating the two rooms with a pistol in his hand, held up Talmadge and Palmer, threatened to shoot them if they interfered, took the moneys, which Palmer had already prepared for the hold-up party, and he and Strand then backed out of the door to this part of the office, got into their cars and were driven away.
Lynch’s defense was that this whole scheme was a fake, so far as the hold-up feature was concerned; that the members of his party w^ere only to go through the' motions of a hold-up, without any intention of taking the money of the express company unless they were able to get it peacefully from Palmer. He also denied that he had shot Brannon.
On the proofs submitted, the state’s contention was that whatever might have been the original scheme, Lynch, when he found Brannon in the freight room, made up his mind that he would take the money at all hazards, whether he was interfered with or not, and that, in order to accomplish this
purpose, lie shot down Brannon, and then went into the other room and took the money from the place where it had been placed by Palmer. The jury, under the charge of the court, found that Lynch had been guilty of the homicide; that it had been committed in the perpetration of a robbery, and that, therefore, the degree of his guilt was murder of the first degree.
The first ground upon which the plaintiff in error seeks a reversal of the conviction before us is based on the allegation that the trial court committed harmful error in refusing to grant his application to be tried before a foreign jury. This application, we think, was properly refused. It was addressed to the discretion of the court, and its refusal constitutes no ground for reversing the conviction unless there was an abuse of this discretionary power. The motion was based upon the assertion of counsel that, owing to the notoriety of the case, an impartial jury could not be obtained from among the citizens of Bergen county, qualified to serve as jurors, but this statement was not justified by any proofs submitted in support of the motion, and, for this reason, was properly denied. We may add that it is at least doubtful whether the Court of Oyer and Terminer has jurisdiction to entertain such a motion. Section 78 of our' Criminal Procedure act
{Comp. Still., p.
1845), apparently, vests that function solely in the Supreme Court. We, however, prefer not to base our conclusion as to the merits of the point under discussion upon the jurisdictional question, as it was not mooted in the trial court.
It is next urged as a ground for reversal that the trial court wrongly refused the defendant’s application for an adjournment of the trial. This application was based upon the statement that counsel appointed by the court to defend the plaintiff in error was only assigned four days before the trial, and that this was not long enough to enable him to properly prepare a defense. We think the refusal to grant the adjournment was justified. It appears, without contradiction, that Lynch, the plaintiff in error, knew nearly a month before the day set for trial that he had been indicted for
the murder of Brannon, and that the trial of the cause had been set for the 23d day of February; this being the day on •which it was moved. He was arrested in Hew York shortly after the murder was committed, and resisted extradition by a
habeas corpus
proceeding. This was decided against him, and he was then brought to Hew Jersey. He had all that time (nearly a month) in which to employ counsel, if he had desired to do so. He did not see fit to do this, and, in order that he might have his rights protected at the trial, the court appointed counsel to defend him. The sole ground upon which the motion to postpone was rested was that counsel who had been assigned by the court had not had sufficient time in which to properly prepare a defense. There was no suggestion then made to the trial court that there were witnesses in existence who, if called on behalf of the defendant, would give evidence supporting his plea of not guilty; and, of course, there was no suggestion that the postponement was necessary in order to procure the presence of any such witnesses. Hor is it now claimed before us that the defendant was harmed as a result of the refusal of the motion to postpone because of the fact that, if it had been granted, he would have been able to produce such witnesses upon the adjourned day. As to the contention that counsel assigned by the court had not had time to properly prepare a defense, an examination of the record of the trial sent up with the return to the writ satisfies us that, even if a postponement had been granted, counsel could not more admirably have defended his client than he did at the trial now under review. We conclude, therefore, that the conviction under review ought not to be reversed because of the refusal of the trial court to grant a postponement.
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The opinion of the court was delivered by
Gummere, Chief Justice.
The plaintiff in error was indicted by the grand jury of Bergen county for the murder of one Frank Brannon, committed in an attempt to rob the American Bailway Express Company, Brannon being an employe of that corporation. The' trial resulted in a conviction.
Briefly, the important facts contained in the evidence submitted on the part of the state are as follows: A man named Palmer was employed by the express company at its Hackensack office as cashier. The superintendent of that office was one Talmadge. The only other employe located in this office at the time of the alleged murder, besides the superintendent and Palmer, was Brannon, the man who was killed. It appeared that Palmer had embezzled moneys of the express company, and that, in order to cover up his defalcations, he had entered into a scheme with certain parties, named Cuneo,
Corcoran, Strand and Lynch, to undertake a pretended hold-up, which would, apparently, justify him in surrendering the moneys of the company then in his charge to the parties engaged in it. It further appeared that he was to advise them when there would be enough money left at the company’s office to make this scheme worth while to them, and the day fixed was the 21st of January, 1926. On that day Cuneo, Corcoran, Strand and Lynch drove from the ferry at the town of Edgewater to Hackensack, and when they reached the express company’s office Strand and Lynch got out, leaving the other two in charge of the two automobiles in which the party had come. The company’s office was divided into two rooms, one used for the receipt and delivery of freight and the other as the business and financial department. Strand went through the door opening into this latter room, and stated to the superintendent, who was there, that he had come to arrange about expressing a trunk. In the meantime Lynch entered the door leading into the freight room. He found Brannon there, and no one else. According to the evidence on the part of the state, for some reason or other, he shot Brannon down, and then came through the door separating the two rooms with a pistol in his hand, held up Talmadge and Palmer, threatened to shoot them if they interfered, took the moneys, which Palmer had already prepared for the hold-up party, and he and Strand then backed out of the door to this part of the office, got into their cars and were driven away.
Lynch’s defense was that this whole scheme was a fake, so far as the hold-up feature was concerned; that the members of his party w^ere only to go through the' motions of a hold-up, without any intention of taking the money of the express company unless they were able to get it peacefully from Palmer. He also denied that he had shot Brannon.
On the proofs submitted, the state’s contention was that whatever might have been the original scheme, Lynch, when he found Brannon in the freight room, made up his mind that he would take the money at all hazards, whether he was interfered with or not, and that, in order to accomplish this
purpose, lie shot down Brannon, and then went into the other room and took the money from the place where it had been placed by Palmer. The jury, under the charge of the court, found that Lynch had been guilty of the homicide; that it had been committed in the perpetration of a robbery, and that, therefore, the degree of his guilt was murder of the first degree.
The first ground upon which the plaintiff in error seeks a reversal of the conviction before us is based on the allegation that the trial court committed harmful error in refusing to grant his application to be tried before a foreign jury. This application, we think, was properly refused. It was addressed to the discretion of the court, and its refusal constitutes no ground for reversing the conviction unless there was an abuse of this discretionary power. The motion was based upon the assertion of counsel that, owing to the notoriety of the case, an impartial jury could not be obtained from among the citizens of Bergen county, qualified to serve as jurors, but this statement was not justified by any proofs submitted in support of the motion, and, for this reason, was properly denied. We may add that it is at least doubtful whether the Court of Oyer and Terminer has jurisdiction to entertain such a motion. Section 78 of our' Criminal Procedure act
{Comp. Still., p.
1845), apparently, vests that function solely in the Supreme Court. We, however, prefer not to base our conclusion as to the merits of the point under discussion upon the jurisdictional question, as it was not mooted in the trial court.
It is next urged as a ground for reversal that the trial court wrongly refused the defendant’s application for an adjournment of the trial. This application was based upon the statement that counsel appointed by the court to defend the plaintiff in error was only assigned four days before the trial, and that this was not long enough to enable him to properly prepare a defense. We think the refusal to grant the adjournment was justified. It appears, without contradiction, that Lynch, the plaintiff in error, knew nearly a month before the day set for trial that he had been indicted for
the murder of Brannon, and that the trial of the cause had been set for the 23d day of February; this being the day on •which it was moved. He was arrested in Hew York shortly after the murder was committed, and resisted extradition by a
habeas corpus
proceeding. This was decided against him, and he was then brought to Hew Jersey. He had all that time (nearly a month) in which to employ counsel, if he had desired to do so. He did not see fit to do this, and, in order that he might have his rights protected at the trial, the court appointed counsel to defend him. The sole ground upon which the motion to postpone was rested was that counsel who had been assigned by the court had not had sufficient time in which to properly prepare a defense. There was no suggestion then made to the trial court that there were witnesses in existence who, if called on behalf of the defendant, would give evidence supporting his plea of not guilty; and, of course, there was no suggestion that the postponement was necessary in order to procure the presence of any such witnesses. Hor is it now claimed before us that the defendant was harmed as a result of the refusal of the motion to postpone because of the fact that, if it had been granted, he would have been able to produce such witnesses upon the adjourned day. As to the contention that counsel assigned by the court had not had time to properly prepare a defense, an examination of the record of the trial sent up with the return to the writ satisfies us that, even if a postponement had been granted, counsel could not more admirably have defended his client than he did at the trial now under review. We conclude, therefore, that the conviction under review ought not to be reversed because of the refusal of the trial court to grant a postponement.
It is next argued that this conviction should be set aside because the trial court improperly overruled certain challenges for cause interposed against members of the special panel drawn in pursuance of section 82 of the Criminal Procedure act; the basis of these challenges being that, according to the testimony of these members, they would be influenced as jurors, to some extent, at least, in determining
the guilt or innocence of the defendant, by newspaper reports of the occurrence which they had severally read. The challenges for cause having been overruled, each one of these members was peremptorily challenged by the defendant.
It is further contended that the court committed injurious error in refusing to direct a mistrial because of the fact that three of the jurors on the special panel, and who were drawn for service, were misnamed, thus depleting the special panel by that number. Two of these misnamed jurors were excused by the court and the third was peremptorily challenged by the state.
We consider that neither of these last mentioned grounds for reversal is meritorious. The defendant elected to bring iu's case before us under the one hundred and thirty-sixth section of our Criminal Procedure act
(Comp. Stat., p.
1863), which entitles him to a much broader review of the proceedings had at the trial than he would have been entitled to under a strict writ of error. The last clause of that section provides that “no judgment given upon any indictment shall be reversed for any * * * error except such as shall or may have prejudiced the defendant in maintaining his defense upon the merits.” It appears in the record sent up with the writ that eleven of the jurors who sat in the case were drawn from the special panel before it _ was exhausted. Mine of them were drawn before the defendant had used up his peremptory challenges. The tenth and eleventh jurors were declared, to lie satisfactory to the defendant. The twelfth juror was drawn from the general panel, pursuant to the terms of section 83' of the Criminal Procedure act
(Comp. Stat,., p.
1847), which provides that “when the special panel or list of jurors served on a defendant * * * shall be exhausted from any cause before a jury for the trial of the indictment shall be obtained, talesmen shall be taken from the general panel of jurors returned for the term at which the defendant is to be tried.” After this latter juror had been drawn he was examined by defendant’s counsel as to his qualifications, and he was then declared by him to be satisfactory to the defendant. The right of the defendant, so far as the empanelling of the jury
was concerned, was to have twelve impartial members of that body selected, and that right was accorded to him. In this situation it cannot be successfully contended that “he was prejudiced in maintaining his defense upon the merits/ either by the fact that three members of the special panel were wrongly named, or by the fact that certain challenges for cause, as he contends, were improperly overruled.
It is further argued as a ground for reversal that the trial court prejudiced the defendant bj rebuking two of the jurors, each of whom stated on his preliminary examination that he was convinced that the defendant was guilty, and that he could not disabuse his mind of that fact unless the evidence showed to the contrary. The propriety of this judicial action seems to us to be beyond question; that its effect was to prejudice the defendant on his trial we are unable to perceive.
We are urged to reverse this conviction on the further ground that the evidence did not warrant a conviction of a higher crime than murder of the second degree, for the reason that, the killing of Brannon was not done in the perpetration of 'a robbery. We think this contention is without merit. It was open to the jury to find, on the proofs submitted, that Lynch, before he shot Brannon, had made up his mind to perpetrate a robbery, if the money could not be obtained otherwise, and that he killed Brannon in order to prevent any interference by him in the carrying out of this scheme. They evidently concluded that this was the case, and, having so found, they were justified in fixing his crime as murder of the first degree.
Other grounds for reversal deal with certain excerpts from the charge of the court to the jury, the contention being that they contained errors in law. Our examination of the charge, however, leads us to the conclusion that there is no legal error contained in it and that there are no misstatements of fact therein, as has been suggested by counsel for the plaintiff in error.
Lastly, it is argued that the verdict is contrary to the weight of the evidence in the cause. Our careful examina
tion of the proofs leads ns to the conclusion that this contention is without merit.
On the whole case, we reach the conclusion that the conviction under review should be affirmed.