There was basic error in the instruction that, on the evidence presented, the jury were at liberty to find that the killing occurred in the perpetration of the robbery, and was therefore murder in the first degree.
The underlying crime was not committed in this jurisdiction. The place of the robbery was in the city of Philadelphia, in the State of Pennsylvania; and the shooting occurred in the vicinity of the city of New Brunswick, in this state, at least sixty miles from Philadelphia. Plaintiff in error and his accomplice had then ceased to be engaged in the commission of the robbery; that crime had been completed. They had long since departed, unpursued, from the scene of the robbery; and it is evident that, viewing the testimony in the aspect most favorable to the state, the killing occurred in an attempt to escape the consequences of the earlier completed crime in another jurisdiction. On that theory, the jury could have found a deliberate and premeditated design to kill in order to effect escape, but not a killing in the "perpetration" of a robbery, within the intendment of section 107 of the Crimes act, as amended by chapter 238 of the laws of 1917 (2 Comp.Stat. 1910, p. 1780; Pamph. L. 1917, p. 801; Cum. Supp.Comp. Stat. 1924, § 52-107), classifying as murder of the first degree a killing in "perpetrating or attempting to perpetrate" a robbery, even though there be no deliberate and premeditated purpose to kill.
The shooting was not, in such circumstances, a part of the resgestae of the robbery. We are not advised as to the constituent elements of robbery under the laws of Pennsylvania. At the common law, robbery was, and under our statute still is, the felonious and forcible taking from the person of another of goods or money of any value, by violence or putting him in fear. 4 Bl. Com. 242; 2 Comp. Stat. 1910, p. 1785. It is implicit in the doctrine of res gestae that the *Page 554 thing falling into that category must be immediately connected with the main fact or event. The term comprehends acts so closely connected with the principal fact as to constitute a part of the transaction itself. It is defined "as those circumstances which are the undesigned incidents of a particular litigated act, which are admissible when illustrative of such act." And it has been said by Chief Justice Beasley that "their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary, in this sense, that they are part of the immediate preparations for, or emanations of such acts, andare not produced by the calculated policy of the actors." State v. Hunter, 40 N.J.L. 495, 538. See, also, State v. Doro,103 Id. 88; State v. Kane, 77 Id. 244; Donnelly v.State, 26 Id. 601. The shooting here is not so classable. It was not an act immediately connected or identified with the perpetration of the basic crime. Compare State v. Mule, 114Id. 384; 177 Atl. Rep. 125; State v. Turco, 99 N.J.L. 96; State v. Rombolo, 91 Id. 560; State v. Carlino, 98Id. 48; State v. Gimbel, 107 Id. 235; State v. Hunter,supra; People v. Smith, 232 N.Y. 239; 133 N.E. Rep. 574;People v. Marwig, 227 N.Y. 382; 125 N.E. Rep. 535;22 A.L.R. 845; People v. Marendi, 213 N.Y. 600; 107 N.E.Rep. 1058; People v. Giro, 197 N.Y. 152; 90 N.E. Rep. 432; Conrad v. State, 75 Ohio St. 52; 78 N.E. Rep. 957; 6L.R.A. (N.S.) 1154; Bissot v. State, 53 Ind. 408.
Ordinarily, the accused's prior departure from the premises, for the purpose of effecting escape, has been regarded as decisively indicating the completion of the underlying crime, or desistance therefrom. People v. Huter, 184 N.Y. 237; 77N.E. Rep. 6; People v. Smith, supra; People v. Marwig,supra. Here, the police officers were unaware of the commission of the robbery; they were moved to action by the unlawful speed of the automobile. The state proved (the evidence was uncontroverted) that the robbery was committed at two A.M.; that at four A.M., or shortly thereafter, plaintiff in error and his accomplice, apparently under the influence of intoxicating liquor, entered a roadside diner near Plainsboro, *Page 555 where they remained for a half hour or more, the while eating, drinking and conversing with the patrons; that they re-entered the automobile, and, after proceeding several miles in the direction of Newark (their destination was the home of accused's mother in that city), were hailed by the police officers. The fact that they then had possession of the money stolen is not, in the circumstances, material; the fatal resistance was designed to escape apprehension and punishment for the completed crime, not to consummate an uncompleted crime of the statutory class. As well might it be said that, if plaintiff in error and his accomplice had continued the journey, and, two or three days or a week or a month later, while in possession of the loot, or a part thereof, killed to escape arrest for the original robbery, the homicide occurred in the perpetration of the latter crime. InPeople v. Marwig, supra, Judge Crane, speaking for the New York Court of Appeals, said: "It is evident that, if the criminals had escaped and were a mile away from the place of the crime, it could not be said that they were then in the commission of a felony." And in State v. Hauptmann,115 N.J.L. 412 (at p. 428), Mr. Justice Parker, in applying the apposite principal, said: "We think that the jury were clearly entitled to find that the child was killed while the `burglar' was still on the Lindbergh premises; and, if so, the homicide would be murder in the first degree under sections 106 and 107" of the Crimes act, supra.
In State v. Turco, supra, the accused, at the time of the killing, was in the act of removing the feloniously coveted silk and the motor truck containing it from the situs of the robbery. He was "still engaged in the robbery;" the homicide was not, in the circumstances, "an independent act dissociated from the robbery." And in State v. Carlino, supra, Mr. Justice Swayze, in reviewing the conviction of one of Turco's accomplices, who had forcibly taken the truck driver and his helpers some distance back from the highway, and was not present when the deceased was killed by Turco, said: "It seems clear to us that as long as the four men remained in charge of the chauffeur of the truck and his companions *Page 556 as prisoners, just off the highway on which the robbery was committed and within a very short distance of the point where the shots were fired, and as long as the truck and the silk seized by the robbers remained in their control at the scene of the robbery and homicide with the evident intent on their part to return to Pennsylvania — the state from which they came — we think the robbery was not at an end. The robbers themselves must have contemplated further joint action until they had made their escape; holding the chauffeur and his companion as prisoners in bonds was itself an act in pursuance of the concert of action to commit the robbery. The holding of the two men as prisoners was a continuous act, and it would be preposterous to attempt to say at what instant of time, short of their release or escape, the responsibility of the robbers ceased." In State v. Gimbel,supra, the accused, while in the immediate vicinity of the store premises where the robbery occurred, with the store manager and other persons, including the deceased, in close pursuit, "ran [with the stolen goods in his possession] through several streets and lots" to a standing automobile, with the intention of using it to effect his escape. Finding the deceased and the store manager at his heels, he fired two shots at them, one of which inflicted the fatal wound.
The fundamental differences betwen these cases and the one under consideration are obvious; the fatal act here was not a part of the res gestae in any sense of that phrase as it has been defined in this state. Our definition of the term carries the doctrine to its extreme limit. Whatever may be its normal limits, it cannot be extended to give an interpretation to this statute that is at variance with its plain terms. This doctrine has been carried to illogical extremes, and has been the subject of much adverse criticism. Professor Wigmore says that the phrase has been "so convenient a term for judicial conjuring that it is even found applied to matters outside the domain of the rules of evidence proper, whether or not the facts involve the utterance of words," and "ought therefore wholly to be repudiated, as a vicious element in our legal phraseology." Wigm. Ev. (2ded.), §§ 1767, 1769. *Page 557 Further observations by this contemporary authority, which need not be set out here, serve to point the danger of unsound extensions of the principle.
Section 107 of the Crimes act, supra, is, on well settled principles, to be strictly construed. We are not at liberty to enlarge upon statutory definitions of crime. Technical words are to be given their technical sense. The legislature has not seen fit to classify as murder in the first degree a killing done in resisting arrest after the completion of a robbery, unless the act be characterized by the statutory requisites of deliberation and premeditation, without which it would be homicide of the second degree. Brown v. State, 62 N.J.L. 666; Bullock v.State, 65 Id. 557; State v. Bertchey, 77 Id. 640;State v. Clayton, 83 Id. 673.
Now, my brethren of the majority do not express a contrary view. Although two passages of the charge embodying the erroneous instructions have been assigned for error, and specified as causes for reversal under section 136 of the Criminal Procedure act (Comp. Stat. 1910, p. 1863), and, by a subjoined specification, the question was unequivocally raised by the thirtieth assignment of error and the cause for reversal bearing the like number, this particular error seems not to have been argued orally or on the brief; and, laying hold of this, the majority say that "the state and the defense throughout the trial were in agreement that the defendant might be convicted of murder in the first degree on any of three propositions," one of which was that "defendant and Morton [the accomplice] were fleeing from the scene of a robbery and that, as a matter of fact, they were still engaged in the robbery and were endeavoring to avoid apprehension therefor;" and that "the issues of fact raised by these propositions were developed by the testimony on both sides, and were by consent submitted to the jury for its determination."
Without conceding that there was assent in fact, it is fundamental in our jurisprudence that plaintiff in error could not, by consent or acquiescence in any form, subject himself to the drastic consequences of a conviction of murder in the first degree, if the homicide lacked the essential elements of that *Page 558 grade. State v. O'Leary, 110 N.J.L. 36; State v. Brown,111 Id. 595. It was not his province nor that of his counsel to consent to his trial upon the fundamentally mistaken theory, propounded by the state and adopted by the trial judge, that, at the time of the shooting, the accused and his accomplice were still engaged in the commission of the Pennsylvania robbery, and that the killing was therefore murder of the first degree, within the intendment of our statute, even though utterly lacking in deliberation and premeditation. As this court said in State v.O'Leary, supra, borrowing the language of Mr. Justice Harlan, speaking for the federal Supreme Court in Hopt v. Utah,110 U.S. 574 (at p. 579); 4 S.Ct. 202; 28 L.Ed. 262: "The natural life, says Blackstone, `cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority.' 1 Bl. Com. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods."
Basic safeguards devised by the law to protect against unjust and unfounded accusation are not alone for the just and the righteous. The accused, no matter how grave the offense, or the degree of his depravity, comes into court under a presumption of innocence; and the burden rests upon the state to establish his guilt of the offense charged — one known to the law — beyond all reasonable doubt, with a due regard for all the essential rights that are his. This is none the less the state's obligation when the accused is one who has pursued a lawless career. The peremptory duty is ever present to guard against evil repute or anti-social conduct becoming a substitute for proof of a crime sufficient in the law. This was not mere "trial error," as the term was used by Mr. Justice Parker in State v. Hauptmann,supra, but an error so fundamental *Page 559 and radical as to render the judgment nugatory. Compare State v. O'Leary, supra; State v. Brown, 111 N.J.L. 595; Hopt v. Utah, supra.
It is elementary that a conviction erroneously secured on one theory (and we are constrained to assume that the jury found that the killing occurred in the perpetration of the robbery, and rejected the other theories) may not be sustained "on the conjecture that it would have followed just the same if the correct theory had been applied." See People v. Moran,246 N.Y. 100; 158 N.E. Rep. 35; People v. Smith, supra.
More need not be said, it seems to me, to demonstrate that the ends of justice demand that there be a new trial of the issue free of this fundamental vice; and I shall therefore vote to reverse.
Mr. Chief Justice Brogan, Mr. Justice Perskie and Judge Rafferty have requested me to express their concurrence in these conclusions.
For affirmance — THE CHANCELLOR, LLOYD, CASE, BODINE, DONGES, HETFIELD, DEAR, WELLS, WOLFSKEIL, JJ. 9.
For reversal — THE CHIEF JUSTICE, HEHER, PERSKIE, RAFFERTY, JJ. 4. *Page 560