Kohl v. State

The opinion of the court was delivered by Dixon, J. The defendant, having been convicted, in the Essex Oyer and Terminer, of murder of the first degree, perpetrated by killing Joseph Preinel, has brought the entire record of the proceedings upon the trial to this court, under the act of May 9th, 1894. Gen. Stat., p. 1154. According to that statute, it is now our duty to determine “ from the record whether the defendant has suffered manifest wrong or injury by rejection of testimony, or in the charge made to the jury, or in the denial of any matter by the court which was a matter of discretion, or upon the evidence adduced upon the trial,” and, if such wrong or injury appears, to order a new trial. After a careful investigation of the record, we find no fault in it, except that the evidence does not justify the verdict. To warrant a conviction of crime, the testimony should prove the guilt of the accused beyond a reasonable doubt. If it fails to do this, i. e., if it be of such a nature that, when fully and fairly considered, it will not satisfy any thoughtful mind, beyond reasonable doubt, of the guilt of the accused, — 446 — then a conviction does manifest wrong, according to our system of administering criminal law. The jurors compose the appropriate tribunal for the determination of controverted questions of fact, but in a civil cause they cannot justly find a verdict for the plaintiff without evidence capable of leading a prudent person to believe in the plaintiff’s claim, and in a criminal cause they cannot justly find a verdict for the state upon evidence which, viewed in any rational aspect, must leave reasonable doubt of guilt in every considerate mind. Against such verdict the party aggrieved can, by the common law, appeal to the trial court for a new trial, and under the statute above cited such an appeal can now be made in criminal causes to the appellate tribunal. I proceed, therefore, to examine the evidence. Joseph Preinel, an orphan, twenty-one years old, lived at No. 545 Eighteenth street, Newark, in the family of his uncle, the defendant’s father. His occupation was selling newspapers and taking care of his uncle’s cows. On June 14th, 1894 (Thursday), his uncle sailed for Europe, and on that day Preinel removed his trunk to the defendant’s house in the same neighborhood, intending to sleep there but to continue boarding in his uncle’s family. The defendant was twenty-two years old, a mason by trade, and lived with his wife and child. On Friday, June 15th, Preinel, the defendant, and one Schweitzer, a witness for the state, were together drinking beer in a vacant lot, near the defendant’s house, until about seven o’clock in the evening, when Preinel and the defendant went home, the latter saying that he was going to a masons’ union that night. Shortly afterwards Preinel and the defendant sat down to tea in the house of defendant’s father. The defendant left that house about half-past eight o’clock, and about twenty minutes later Preinel went out. About nine o’clock they were seen together near by, on the corner of Eighteenth street and Sixteenth avenue, where the defendant sent a boy to Kunzman’s saloon for some whiskey, of which — 447 — Preinel took a drink. About ten o’clock the defendant was at the masons’ meeting, 255 Court street, about half an hour’s walk from Eighteenth street and Sixteenth avenue, where he drank some beer. The testimony is in some conflict as to the hour when he was there, but the witnesses agree that he was there just before the meeting organized, and the testimony of the secretary, who says it organized after ten o’clock, is the most trustworthy, because of his official position and because of the reasons which he gives for knowing it was late. This harmonizes also with the evidence as to the time of the defendant’s presence elsewhere. About one o’clock on Saturday morning the defendant went into Blessing’s bake shop, two doors from his own home, and bought some rolls, and, when asked why he was there so early, said he had been at his union and that he could not sleep, the mosquitoes were stinging him so much. From that time on his whereabouts are fully shown. About eleven o’clock on Saturday morning Preinel’s body was found by two young men in Shinder’s creek, on the line of the Newark and New York railroad, about five miles from the defendant’s house, towards New York. It lay in the creek, face downwards, with a large stone resting upon the back. The skull was broken, and a strap was drawn tight around the neck. Near by in the creek were four or five railroad coupling pins, which were fastened together and bore evidence of having been tied to the strap. There is no doubt he had been murdered, although it was at first regarded as a case of suicide, and as such the county physician’s certificate, made on Sunday or Monday following, described it. News of the finding of the body was brought by the young men to the police station in Newark, at ten minutes past twelve o’clock noon, but the body was not identified as that of Preinel until fifteen minutes before seven o’clock on Sunday morning, when the defendant’s mother saw it at the morgue. Under these circumstances the burden resting on the state was to prove that, between ten o’clock on Friday night and one o’clock on Saturday morning, three hours of time, the — 448 — defendant had met Preinel, gone to Shinder’s creek five miles away, murdered Preinel and disposed of his body in the manner indicated, and returned five miles to Blessing’s bakery. To support this burden, the state relied on two sorts of evidence—-first, evidence that the strap round Preinel’s neck had belonged to the defendant; second, evidence of the defendant’s declarations. Of the first sort it is enough to say that the evidence consists of the opinion of two witnesses that the strap is like one worn by the defendant. Against this is the fact that the strap is a common one, and also the testimony of four or five witnesses, who had better means of observation than the others, that a very different strap, which was taken from the defendant’s waist at the time of his arrest, was the one worn by him for some months before. The preponderance of proof is decidedly against the state on this sign of guilt. The other species of evidence needs more consideration. After the defendant left Blessing’s bakery, he went, about half-past two o’clock that morning, to Eckert’s bake shop, about a block away, to help the bakers, Baukert and Schweitzer, as he had agreed the evening before to do. They swear he told them that he had been at the masons’ meeting; that a keg of beer had been set up there, and that he had not got home till two o’clock. After they had made the dough, the defendant went out, saying he was going home, but would come back, and when he returned he told the bakers that his Cousin Joe had not come home and he did not know where he was. The defendant stayed there about an hour making pretzels, and more than once spoke of his cousin not being home. At the suggestion of one of them he went to see whether Preinel had not slept in the stable. One of the bakers, Reuple, a lad then sixteen years old, swears that about five o’clock he asked the defendant why he had not gone fishing that morning with Mr. Eckert as he had promised, and the defendant replied that he was out, down in the creek with Joe Preinel, and that Joe was killed. In giving this conver — 449 — sation a second time, the witness said that defendant told him Joe’s body was down in the creek, and that Joe was killed, and to this form of expression he adhered. In the remark sworn to by Baukert and Schweitzer there is no reference to Preinel’s death, and its whole force lies in the fact that on the preceding night a keg of beer had not been set up at the masons’ meeting, and so, if the witnesses are right as to the date, the defendant gave a false account of his whereabouts during the critical hours. But it appears that the defendant was at large until July 9th, when he was arrested on his wife’s complaint for assault and battery, and that he was not charged with this murder till near August 1st; that in the latter part of June or early in July a keg of beer had been set up at the masons’ meeting, which was regularly held over a beer saloon, and that the defendant frequently worked in the bake shop with these witnesses early in the morning. It is, therefore, easy to believe that the remark was made on some other morning, the witnesses being mistaken only as to the date. With a conversation so indifferent at the time and not recalled for weeks afterward, such a mistake is not only possible but highly probable. The words sworn to by Reuple are more significant, but in the form in which they were persistently given by him the time of their utterance is all important. For the defendant to say on Saturday morning that Joe’s body was in the creek and he had been killed, would be clear evidence of his guilt, because no one except the murderer then knew that; for him to say the same thing on Sunday morning would be no sign of guilt whatever, because then many innocent persons knew it. We must, therefore, consider carefully whether the witness is trustworthy as to time. He says this remark was made to him about half an hour before the defendant spoke of Joe’s not being home, and that it was made about five o’clock. The other bakers say he spoke about Joe’s not being home about three o’clock. The remark sworn to by Reuple, if made on Saturday, was a startling one, and inconsistent — 450 — with the defendant’s declarations, made soon after in Reuple’s hearing, that he did not know where Joe was. But it seems not to have startled the witness, and he did not call attention to the inconsistency. The witness explains this by saying the defendant asked him not to tell anybody, but this explanation is inadequate and perhaps even adds to the surprise at his concealing so shocking a fact. The witness did not speak of this remark until four weeks afterwards, when he related it to a detective, to whom he subsequently repeated it about five times. On the following morning (Sunday) Baukert, Schweitzer, Eeuple and the defendant were in the same shop at work, and Eeuple says the defendant then told Baukert that Joe was found in the creek and that he was killed. It thus appears that the surroundings of the witness on these successive mornings were very similar, and it is not unlikely that, when called on.by the detective for evidences of the defendant’s guilt, he transformed an innocent utterance into .an indication of criminality by a mere confusion of the two ■occasions. The witness Schrade swears that on Saturday before dinner in Kunzman’s saloon, .where they drank beer, the defendant told him that he had heard his cousin was drowned, but he would not believe it until he saw him. The witness could not say whether this was ten, eleven or twelve o’clock. He lived over the saloon, and the defendant was frequently in it. This testimony likewise is open to the criticism that there was nothing to render the witness certain as to time, and a slight error in that particular would strip the remark of all importance, for a report that a body had been found drowned might reach the defendant soon after noon, and that, coupled with Preinel’s disappearance, might awaken the fear which the words expressed. A young woman testifies as follows: “ On Sunday afternoon, June 17th, the defendant asked me if I had heard of his cousin’s death, and I said no; and he says, ‘ He committed suicide then he says to me, ‘I went fishing with him;’ I don’t remember did he say Thursday night or Friday night, ‘I — 451 — went fishing with him down to the fishing banks, down in the bay or banks;’ I don’t know did he say banks or bay; and he says, ‘All of a sudden he was gone;’ and he says he thinks he committed suicide.” This witness swore she did not pay much attention to what the defendant was saying, and did not speak of the conversation until July 8th, when she told it to the detective. This testimony, if fully credited, is of grave import, which does not depend upon its accuracy as to time. Collocated as the witness gives them, the defendant’s words amounted to a declaration that he had been fishing with Preinel, when Preinel suddenly disappeared and committed suicide. But it is noticeable that, according to the narrative, the defendant named the night Thursday or Friday when he went fishing with Preinel, and did not in terms connect that night with the disappearance and suicide of Preinel. If, in fact, the defendant referred to different occasions, which have been represented as one through the inattention of his hearer, the testimony loses much of its force. This was the case made by the state. It consisted substantially of the defendant’s declarations, which, as repeated by the witnesses, were of such a character that a slight change in the phraseology or in the time of their utterance deprives them of much significance on this charge. When we reflect upon the inherent difficulty, even under most favorable conditions, in remembering with precision the words of a conversation and the time of its occurrence, and observe that the declarations now under review were made to persons who attached no importance to them at the time, and did not attempt to recollect them until'weeks afterwards, and then, for the purpose of aiding in the detection of a murderer, the frailty of the case becomes apparent. If now we turn, not to the testimony offered by the defendant, which in many points contradicted the evidence already reviewed, but to the negative signs of innocence disclosed in the state’s proof, I think it certain that reasonable doubt of the defendant’s guilt must arise in every thoughtful mind. — 452 — The defendant and Preinel were friends, and there was no motive, peculiar to the defendant, for the murder. It is suggested in the evidence that Preinel had several hundred dollars on his person, and that robbery was the motive for the crime. But, although the defendant was poor, working for his daily bread, and was at large, frequenting his familiar haunts, unsuspected, for several weeks after the crime, he does not appear to have had any more money than usual or in any respect to have changed his habits. The locality where the murder was committed was muddy, and the murderer must have walked into the creek to place the body in the water and put the large stone upon it. If the defendant was the murderer, he must have used extreme haste to do all that he did in the three hours during which the state’s witnesses did not show his whereabouts. Yet, at the end of those three hours, in Blessing’s bakery, it was not noticed that he was wet or muddy, or that he wore any other than his usual clothes, and he exhibited no signs of perturbation, but spoke in an ordinary way of the masons’ meeting and of the mosquitoes. In fine, our conclusion is that, while the state’s evidence raises suspicion against the defendant, it so clearly fails to prove his guilt beyond a reasonable doubt that we are constrained to adjudge that he has, in the language of the statute, suffered manifest wrong upon the evidence adduced upon the trial, and therefore to set aside the conviction and order a new trial.