Evening Star Newspaper, October 10, 1935, Page 13

e + raised. Throughout the lengthy sum- g mation it was at one juncture, and one only, that the defense counsel inter- BASIS OF ACTION Failure to Object to Points Raised After Trial Cited by Jurists. The text of the unanimous opin= jon of the New Jersey Court of Errors and Anpeals on the appeal of Bruno Richard Hauptmann from his conviction of the murder of Charles A. Lindbergh, ir., written by Justice Charles W. Parker, fol- lows: The plaintiff in error was indicted for murder by the grand jury of Hunterdon County, was tried in that county and convicted of murder in the first degree without recommenda- tion of life imprisonment, and brings this writ o. error. The victim of the alleged murder was Charles A. Lindbergh, jr.. a child less than 2 years old, on March 1, 1932, the date laid in the indictment. On that evening, according to the testi- mony, the child was put to bed about 8 o'clock and was left asleep in the house of his parents at East Amwell in the county of Hunterdon. About 10 o'clock, when the nurse returned to the room, the child was missing, and indications detailed in the evi- dence pointed to a kidnaping. On the window sill was a letter tes- tified to be in the handwriting of the defendant demanding $50,000 ransom and signifying that later instructions | as to method of payment would be forthcoming. This led to negotiations, in the course of which a number of other notes were received, and on the evening of April 2 Dr. Condon. an agent of Col. Lindbergh, the father, met & man who, as the State claimed and he testified. was the defendant, at a cemetery in the bronx. Sleeping Garment Important Clue. ‘The money was paid in bills capa- ble of later identification, the parents having already received as proof that the kidnaper had the child, a little sleeping .suit which the child had on | at the time of the kidnaping, and which figured as an important piece of evidence. The baby himself was never re- turned, and, as shown to the satisfac- tion of the jury by the evidence, had long been dead. His mutilated and decomposed body was accidentally discovered on May 12 in a shallow | grave several miles away in the ad- Joining county of Mercer. The State claimed, and evidence supported the claim, that the autopsy disclosed the baby had suffered three violent frac- tures of the skull and that death was instantaneous. As a result of investigations con- tinued over many months, the de- tective and prosecuting authorities procured the arrest of the defendant, a resident of the Bronx, on a charge of murder. He resisted extradition, but was ultimately surrendered by the New York State authorities. The present indictment was returned on October 8, 1934, and the trial began January 2, 1935, and continued until February 13, 1935, on which day de- fendant was found guilty as above stated and sentenced to suffer the death penalty. Argument on the writ of error was deferred until June 20 at the special request of counsel for the plaintiff in error, and to afford them time to pro- cure the printing of the 10-volume state of the case. It is not necessary at this point to go into extended discussion of the evidence. Certain special features of it will be considered in connection with the several points made for re- versal and particularly in connection with weight of evidence. It is proper to note, however, as a matter of com- mon knowledge, the existence of great | popular excitement before and throughout the trial, and of a crowded court room at all stages of the case. The caseis brought up both on bill of exceptions and on a certificate of the entire record of proceedings at the trial pursuant to section 136 of the criminal procedure act, C. S. 1863. ‘The assignments of error are arranged in groups A to R, inclusive. The causes for reversal under the addi- tional statutory review run similarly from A to V. They are not identical throughout. No Question Raised Of Baby's Identity. The fundamental inquiry, in the language of the cited statute, fis whether defendant on the trial “sui- fered manifest wrong and injury, either in the admission or rejection of testimony or in the charge of the | court, or in the denial of any matter by ‘the court which was a matter of discretion * * * provided, no judg- ment * * * shall be reversed for any ® * * error except such as shall or may have prejudiced the defendant in maintaining his defense upon the merits.” As to the corpus delicti, little or no question was raised. The identity of the dead child was expressly admitted. The question, whether an indictment would be in Hunterdon was vigorously argued. Apart from this, the main contest was over the question whether defendant was the guilty man, the State claiming that he was, and he claiming the contrary, that he was never at the place of the crime, knew nothing about it and had nothing to do with if. Certain questions of law were argued below and again in this court. The brief for plaintiff in error, which was followed at the argument, presented the case under 16 points, grouping assignments of error and causes for reversal where they are cognate. And these points will be considered in the order appearing on the brief. Point 1 is that “the summation of the attorney general violated the legal and constitutional rights of the de- {endant.” As may be surmised, the summation on both sides was lengthy. That by Mr. Rellly of the New York bar, for the de- fense, covers 100 pages of the printed case. That by the attorney general, 135 pages. From this latter counsel for plaintiff in error have extracted a number of passages, which, as they claim, amounted to illegal and uncon- stitutional abuse of the rights and privileges of an arguing advocate, and charge error on the part of the trial Judge in failing to intervene and re- strict the speaker to his legitimate line of argument. Some are expressive of a belief in defendant’s guilt on the part of prose- tuting officers, some are vituperative characterizations of defendant. Given his guilt. One or more intimate that the jury would be guilty of a crime in failing to convict. Defense Failed Y To Make Protest. posed with an objection that the State | counsel was going outside the evi- | dence. We shall return to this pres- ently. With that exception the four |lawyers representing defendant and |employed by him, said nothing by way of protest. | The pertinent rule in this State is well settled, and was enunciated |in this court by the late Chancellor Walker in Stute vs. Terry, where he said: “The rule in this State, undoubtedly, is, that where counsel, in summing up to the jury, goes outside of the testimony and makes appeals based upon facts which have not been proved, but rest upon his unsupported assertions, the party injuriously af- fected must, in order to be relieved, move the trial judge to order the re- mark$ stricken out and to charge the Jury that they should be disregarded. |An objection only to the illegal re- | marks does not require the trial judge to strike them out of his own motion, and unless counsel requests their elim- | ination no ground for review is laid.” In State vs. Baker, 68 N. J. law, 19, a Supreme Court case, opinion by the late Chief Justice Gummere, it was held: “Where the testimony, | introduced at the trial of an indict- | ment, clearly shows the guilt of the | accused, a statement made by the prosecutor of the pleas, in his sum- ming up to the jury, that a verdict of acquittal would be a miscarriage | of justice, affords no ‘ground of ex- ception.” Wilentz Attacks On Prisoner Upheld. In State vs. Lang, 75 id.. 1, at page | 7. the Supreme Court held the prose- | cuting attorney, in view of the e""d | dence, to be within his privilege in describing the defendant as “a mon- | ster in his passions, licentious in his | desires, beast in his love, brutal when | thwarted and cowardly when caught.” The case came to this court on writ of error (Id, P. 502), and the judgment was affirmed for the rea- sons stated opinion (see P. 513) except on the point of a challenge to the jury. On that point alone it was carried to the Supreme Court of the United States and again affirmed (209 U. S., | 467-521, Ed. 894). | point was even suggested. In State vs. Biango this court held that improper remarks by prosecu- tor in the absence of timely objec- court are no basis for reversal either on strict writ of error or under sec- | tion 136, supra. | 1In State vs. McCormack, 98 id., 287, the prosecutor, in summing up, said: “Would I, district attorney. having | delved in this case for months, urge | this prosecution if I did not believe | what the prosecutrix said was true?” | The Supreme Court said this was im- | proper, but pointed out that when | defendant’s counsel objected and asked | that the remarks be withdrawn, the | prosecutor at once withdrew them | and asked that they be disregarded. This was in accord with the practices outlined in State vs. Terry. The | McCormack case came to this court |and the judgment was affirmed on the opinion of the Supreme Court, 94 N. J. law, 262. | In State vs. Corson, 108 id., 12, | the prosecutor during his summation | made a prejudicial remark not justi- | fied by the proofs. Counsel for de- fendant asked the court to withdraw a juror and award a mistrial, but | the Supreme Court pointed out the rule in State vs. Terry and said that in such a case the party injuriously | affected must, in order to be relieved, | move the court to order the remarks stricken out and to charge the jury that they should be disregarded, and | this course not having been taken, no reversal could be had. The judgment was affirmed in this court, 109 id., 144, on the opinion of the Supreme Court, except as to one point not here relevant. Crime Is Termed Worst of Century, | _In very recent case of Berger vs. | United States, 9—U. S.—79 L. Ed., | 667; 55 Supt. Ct.. 629, is relied on | for reversal on this phase of the present case. But as we read the opinion, the reversal is predicaied on | grossly improper conduct by the dis- trict attorney plus a weak case on the evidence, which latter is far from being the situation here. It may be well further to note that | the leading courisel for the defense in | | the instant case, who summed up to | the jury, anticipated the Attorney General when he remarked at the outset that “this is the crime of the century, and it is the worst crime and | the lowest type of crime ever com- mitted, to my knowledge, according to any of the books I have ever read.” And as he was closing: “I have tried to be honest * * * I believe this man is absolutely innocent of murder.” We are far from setting the seal of approval on any statement on the ‘,persoml beliefs of counsel on either side as to the fact of guilt or inno- cence. But it is unnecessary to dis- cuss the matter in detail, as we deem the rule in State vs. Terry applicable, Meyers Scoops Knit an outstanding combinations of for it! “But-we find no6 legal error in the Supreme Court| The abstract of | counsel's brief shows that no other | tion and request for action by the| “"Doncaster 25 dozen of them—a colorful array of fine-tying, good-looking ties that are They're two-tone stripes in pleasing them for the man who wants to dress a little smarter, without pcying extra MENS SHOP 1331 F STREET THE EVENING Hauptmann Dies Within 2 Months If Appeal Fails By the Associated Press, TRENTON, N. J,, October 10. —Legal observers said today Bruno Richard Hauptmann— unless he wins his last few appeal moves—will die in the electric chair late in November or early in December. From 10 to 15 days will elapse before the record in the case is sent back to Supreme Court Jus- tice Thomas W. Trenchard, who will set & new date for carrying out the death sentence he im- posed last February. Justice Trenchard must fix a date not less than fouf weeks nor more than eight from the time he receives the record. and that this case shows no such ele- ments of factual weakness as the Berger case. Other pertinent decisions are State vs. Lockmna, 83 N. J. law, 168, and State vs. Parker, 83 id,, 173, 176. At one point in the State summation there was an interruption and an objection, as already noted. A witness named Sisk, sworn for the State, was under cross-examina- tion, and testified as follows: Q. Now, isn't it a fact that after talking to Dr. Condon you had Dr. Condon imitate the voice of John at the cemetery and that imitation re- corded on Victrola records? A. Why, W | Q Did you or not? A. Yes, sir; we | id. Q. Where are those Victrola rec- ords? A. Well, there was only one| record, and I believe that is in Wash- ington. Q. May we obtain it? suppose so0. Q. Can you get it? A. It will take a couple of days. Record Not Placed | Before Jury at Trial. Mr. Reilly, alluding to this in his summing up, said: *“I challenged them—I produced evidence that Condon repeated as best he could the voice he heard, and it was made on a Victrola record, and I chal- | lenged them to produce it, and they | admitted they had it and they don’t | bring it in here and they can't bring in the foot print. Now why? Be- cause the footprint does not fit the defendant’s, even the imitation of it. And then they talk about jus- tice. Justice. Hang this man and cover up our sins.” ‘The attorney general in his reply said: “Then counsel wants to know where is the phonograph record. Did you hear him ask Mr. Sisk of the Department of Justice if there was such a record, and did he havei it, and would he produce it. Why, sure, that phonographic record has been alive and awake waiting for | him to call for it. To put his voice | on for you. “I would have loved if you had heard the story all over again, Con- don telling about this conversation. ‘Will I burn if the baby is dead? Are you German, John? No, I am | Scandinavian. Have you got the| money? No, I haven't got the money. Doesn't Col. Lindbergh think we are the right party?’ ™ . | Mr. Reilly objected that this was | “something which he assumes would be in the record, if it was called for—" The attorney general explained that he was talking about Dr. Condon's | testimony. Mr. Reilly admitted to the court that he had asked one of the witnesses about the record and “would he bring i{t?” The court ruled that the attorney general had not gone outside the evidence, and the defense excepted. False Statements Admitted by Defendant. But quite plainly what the attorney general was quoting was from the tes- timony of Condon, not from a phono- | graph record. The substance of what | he quoted will be found in that testi- mony. The obvious conscruction to be | | placed upon the remarks of the attor- | | ney general was that the defense were | afraid to call for and produce the phonograph record because they felt | that if produced and played before the | jury it would be found to repeat what Dr. Condon had testified to in regard to his interview with the defendant at the cemetery. ‘The question whether the record could have been made admissible as evidence (see State vs. Simon, 113 N. J. Law, 521; 115 id., 207) did not come up for consideration. We agree with the trial judge that counsel was | within his rights in challenging the | failure of the defense to call for the record as due to fear of what it might and probably would show. In connection with point 1, and un- der a heading of 1-A, it is argued that the attorney general argued with, spd bullied the defendant and other wit- nesses on cross-axamination. So far as the defencant himself is concerned, s rigid cross-examination was fully A Yes, 1| Washington Ties fashion right mnow. shades. We present STAR, WASHINGTON, warranted. The State’s direct case against him was strong and, as already noted, the main defense was denial of any participation in the crime, or presence at the scene. Defendant had admitted false state- ments in the New York proceedings, he assumed an evasive attitude on cross-examination, he admitted a series of crimes, convictions and crim- inal escapes in Germany, two unsuc- cessful attempts and a third successful attempt to make unlawful entry into this country. We can find no objection by his learned and astute counsel, except at one point, where one of his counsel intervened, saying: “Well, I think this has gone just about far enough.” The question just asked and not an- swered was withdrawn and & short colloquy ensued, in the course of which counsel said: “It seems to me it is about time we protested against it. It has been going on for quite a while.” The court: “Whenever you have any occasion to protest, you make your protest to the court while the thing is going on, and the court will deal with it; it always has and wil continue to do so.” The cross-examination proceeded without further objections for 15 pages of the printed book, a question was then objected to and overruled D. C. unanswered, the judge saying, “Yes, that is objectionable. I sustain the objection.” The cross-examination then pro- ceeded without substantial interrup- tion for over 100 pages more. Our conclusion on this point is taat it is without merit. Differing Theories Held of No Weight. Point 2 is that “there was a iia- terial variance in the theory of the State and the proofs.” This grows out of the fact thet the attorney general in opening the case, and the prosecutor of the pleas in his opening argument at the end of the proofs, relied upon the theory that the death of the child ocourred when he was being taken out of the nursery down the ladder, which broke and he was precipitated to the ground, while the attorney general argued in his closing summation that the child was beaten into insensibility in the nursery and that perhaps the child was gdead or insensible when removed from the house. But this latter was not the theory on which the case was submitted to the jury. And the substantial claim throughout was that the defendant feloniously opened the window, seized the child and its clothing apd at- tempted to escape through the win- dow again, and that the injuries that THURSDAY, OCTOBER 10, 1935. ' COURT'S DECISION ENTIRELY REJECTS HAUPTMANN'S PLEA caused the child’s death were inflicted during the perpetration of that feloni~ ous and unlawful act. ‘The variance, if such there was, made and could have made no dif- ference in the defense, which was that the defendant was not there. Moreover, there was apparently no objection made, no exception taken, no request for an opportunity to reply to the argument freshly presented, no request for & jury charge based there- on. It is urged that the court should have charged, as requested, that there was no evidence of a willful, deliberate and premeditated murder by the de- fendant. Again, the case ‘was not submitted to the jury by the court on any such theory. It was submitted on one theory, and one alone, viz.: of homi- cide in the perpetration of a burglary. No such situation existed as that in State vs. Jone, 115 N. J. Law, 257, where at the last moment the theory of the prosecution shifted from rob- bery to burglary. ‘We find no error here. Find Public Policy Not to Be Violated. Point III is stated in the brief as follows: “Public policy is the policy of the | law expressed in and derived from the Constitution, law and judicial decisions.” This heading, of course, states nothing which is challenged as error, but the brief goes on to argue that s reading of the specifications re- ferring to the summation and & pe- rusal of the summativn itself should lead this court to the conciusion that there was a violation of a legal the prosecuting attorney must con- confine his summation within the rules of law and that it further be- that this ancient rule be followed. It would seem to be a weak answer should have objected at every op- portunity. Many reasons may be advanced why counsel for the de- fendant in this or any given case might not interpose objection. Nev- ertheless, trials are not entirely bal tles of wits and prosecuting attorneys, and presiding judges are under a duty to every defendant to observe fundamental rules of law. The brief continues. “It is also contended that the ma- terial variance between the opening proofs and summation, relating to the change as to the instrumentality | causing death and the place where | the death occurred, involving as it rule founded upon public policy, which | rule, it is contended, requires that duct the trial in accordance with and | | comes the duty of the court to see to say that the defendant’s counsel | did a new theory of wiliful, deliberate | A—13 | and premeditated killing, resulted in |a violation of a question of public | policy, for it is a principle well grounded in the law that defendant shouid be fairly apprised of the na- ture and cause of the accusation against him.” These two matters have just been fully treated, with the result that we find no error. However, while specifically admijt- ting that there was only one objec~ tion and exception by defendant to the summation and no exception taken specifically to the alleged vari- ance, nevertheless counsel brought it to the attention of the court, and particularly excepted to that portion | of the charge which permitted the jury to find as a matter of fact that | the skull fracture was inflicted while the chiid was being carried down the ladder and when the ladder broke. Counsel challenged this as not justi- fied by the evidence and as being contrary to the State’s theory that | the fatal blow was struck while the | child was still in the nursery. | Constitutional Right | Held Unimpaired. { All this has been already gone over and needs no further comment, ex- cept in reply to the reliance of thc plaintiff in error on the opinion in this court in State vs. O'Leary, 110 " (Continued on Fourteenth Page.) 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