84 N.J.L. 556 | N.J. | 1913
The opinion of the court was delivered by
This is a strict writ of error brought to review the conviction of the defendant of murder in the second degree. The indictment charges murder, manslaughter and assault and battery, and an inference may be drawn from the testimony that the defendant with others broke into a room in a factory building where two persons, Joseph Couri and Edward Ged, his assistant, were sleeping; that the defendant repeatedly discharged a revolver into the room, one of the shots striking and killing Couri, and that the purpose of defendant and his companion was to obtain possession of the factory, which it was claimed was being uni aw hilly held by Couri and Ged for their employers.
It is next argued that the court committed an error in defining the crime of murder in the first degree. The complaint seems to be that the court read to the jury the statute regarding murder, including what is there defined to he murder in the first degree, by means of poisoning or lying in wait or by any kind of willful, deliberate or premeditated killing. The objection now made is that as there was no proof of poisoning or lying in wait, it was improper to include these elements in the definition of murder in the first
The plaintiff in error also insists that the jury were misled by the charge relating to the different degrees of murder, and the argument appears to be based upon the notion that the charge limited the finding of murder of the first degree to acts perpetrated when the defendant was engaged in, or attempting to commit arson, burglary, rape, robbery or sodomy, and that any other kind of willful, deliberate killing was murder in the second degree, and thus the jury were misled and confused.
The conclusion to which the argument of plaintiff in error leads is that he was injured because, as he claims, the court limited the definition of murder in the first degree to a killing, while the accused was perpetrating the acts specifically named, and excluded all other kinds of willful and deliberate
The next point is that no malice was shown. It is enough to say in answer to this that if the killing was perpetrated in an attempt to do a serious bodily injury or to take life, malice is implied.
The next point is that there is no evidence to war-rant a finding that the defendant, when he shot the deceased, was committing, or attempting to commit, any of the crimes
A considerable part of the proof for plaintiff in error is devoted to showing that on the testimony submitted the jury ought not to have convicted him of any offence higher than manslaughter. If they believed the witnesses of the state, they would have been justified in convicting him of murder of the first degree. Their finding-is not reviewable on writ of error.
It is further contended that the court erred in-refusing to permit testimony showing that one Risk had taken the defendant and others to the factory for the purpose of obtaining possession of it, by advice of his counsel, one Alexander. I think this testimony was quite immaterial, for certainly if what the defendant did was by advice of counsel, such advice would afford no protection nor operate to reduce the grade of his offence. The testimony by which it was sought to show that certain persons known as the Eaour brothers were related to the deceased was immaterial and properly' excluded.
The instruction given by the court to the jury that if the defendant was standing by and aiding and abetting, or taking part in a scheme to get possession of the property, even at the cost of the life of the decedent, the defendant would he guilty, even if he did not himself fire the fatal shot, was a correct instruction.
The judgment under review should be affirmed.