LEGAL ASPECTS OF LINDBERGH-HAUPTMANN
By Charles A. Riccio Jr., J.D.
Posted October 2010
Not another article about the kidnapping and murder of the Lindbergh child! What can this effort tell us that we do not already know? Read on. It is one of those cases that will never die. Can it be true that the wealthy are treated more leniently than the poor? This writer has always asked students, “Would you rather be guilty and rich or innocent and poor?” And the answer is always about an even split.
In this article, I will consider three topics in the Lindbergh case which might put to rest the inquiring minds of some: the felony murder rule, the judge’s charge to the jury and the appellate court’s opinion.
THE FELONY MURDER RULE
A great many unenlightened people believe that Hauptmann was charged with kidnapping. He was not. He was charged with murder and with nothing else. Why so? Because in 1932 New Jersey kidnapping was not a capital offense, i.e. conviction did not carry with it the death penalty. On the other hand, conviction of first degree murder was a capital offense. But first degree murder required proof beyond a reasonable doubt of the accused’s specific intent to kill his victim, and there was no direct evidence of Hauptmann’s having caused the death of the child. What to do?
The felony murder rule does not require proof of a specific intent to kill. This rule is an ancient one. In its simplest form it provides that a person who commits a dangerous felony is guilty of first degree murder if the death of anyone is caused by anyone even if the death is accidental.
Example: A druggist sets fire to his pharmacy in order to collect the insurance. Firefighters come to the blaze. A firefighter enters the burning building and is killed when the building collapses. The pharmacist is guilty of first degree murder.
Example: Whitman and an accomplice drive to the grocery store. The accomplice remains in the car while Whitman goes in and steals money from the cashier. He and his accomplice flee, accomplice driving. Police officers arrive on the scene and pursue. The thieves’ car speeds off and on going through an intersection crashes into another car killing the driver of that car. Whitman and his accomplice are both guilty of first degree murder.
So what is the problem? As stated above, kidnaping in 1932 New Jersey was not one of the felonies that would activate the felony murder rule. What to do? Burglary on the other hand was one of the felonies that would activate the felony murder rule. So did Hauptmann commit burglary?
Burglary contemplates the unlawful entry into a person’s dwelling house with the intent to commit a crime. So did Hauptmann intend to steal any item of personal property when he entered the child’s bedroom? By a stroke of prosecutorial genius the state realized that Hauptmann had indeed intended to steal something. He intended to steal the child’s Dr. Denton sleeping suit which he was wearing when he was seized. The sleeping suit was worth about $3.00 new. When Hauptmann left the room with the child under his arm and the child accidentally fell and died as a result of a fractured skull it made Hauptmann guilty of first degree murder in accordance with the felony murder rule even though the death was accidental.
We will see in a moment how Judge Trenchard explained this abstruse principle of law to the jury in his charge and how it applied to the facts of the case.
Yes, the ladder. The ladder is important because it is the only item of evidence that connects Hauptmann to the crime. The thinking went like this: A ladder must have been used to climb to the second floor, and a ladder was found on the grounds so that ladder must have been the one used. With all the planning and preparation that must have gone into the execution of the crime one would think a much better and sturdier ladder would have been used. A much sturdier ladder was used! Pictures of the ladder show it leaning against the wall of the house under the window to the child’s bedroom. But that is not where it was found. It was found on the ground about 80 feet from the house. Lindbergh himself believed the ladder belonged to the workmen who were building the house and who abandoned it when their work was done. The state’s theory was that when Hauptmann descended from the room, the child fell as the result of a broken rung on the ladder and fractured his skull. Hauptmann, then with the child under one arm and the ladder under the other, fled. About 80 feet from the house the load became too heavy to carry so he abandoned the ladder and continued to his car.
Notwithstanding the (disputed) testimony that he had built the ladder, the simple uncontroverted fact supported by the evidence of your own eyes is that the ladder could not possibly have’ been built by Hauptmann and had not been used by anyone in the kidnapping. The writer believes a ladder was used and it was carried away by one of the kidnappers but it was not the ladder that was found on the grounds and admitted into evidence. The state used the ladder in its case because the ladder was the only connection it had with Hauptmann. Without the ladder there would have been no case against Hauptmann.
THE JUDGE’S CHARGE TO THE JURY
Judge Trenchard explained the felony murder rule somewhat ungrammatically and without mentioning the term felony murder as follows: “The state contends that the murder in this case was committed in perpetrating or attempting to perpetrate a burglary and is murder in the first degree. Our statute relating to burglary says ‘any person who shall by night willfully and maliciously break and enter any dwelling house with the intent to steal, commit a battery, shall be guilty of a high misdemeanor. ‘ If therefore the defendant willfully and maliciously broke and entered the Lindbergh dwelling with the intent to steal the child and its clothing and to commit battery he committed burglary”. (emphasis added) No definition for battery was given.
Hauptmann was convicted of first degree murder and was immediately sentenced to death. Some members of the jury later said they determined his guilt almost immediately and spent the balance of eleven hours in determining whether they should or should not recommend clemency.
Appeal was taken to the Court of Errors and Appeals of New Jersey, October 9, 1935, 180 Atlantic Reporter 809, 1935. The court’s 35-page opinion in which all 13 justices concurred without dissent and without written opinion began the opinion by saying, “it is not necessary at this point to go into an extended discussion of the evidence.” (NOTE: the defense argument in bold italics is followed in plain print by the court’s holding. There is some duplication in the court’s opinion.)
The summation of the attorney general violated the legal and constitutional rights of the defendant.
Held: The summation on both sides was lengthy, the defense summation consumed 100 pages of the printed case, that of the attorney general 135 pages. The defense at trial said nothing by way of protest. Quoting State v. Terry the court said an objection to illegal remarks does not require the trial judge to strike them sua sponte and unless counsel requests their elimination no ground for review is laid. Quoting State v. Biango the court held “improper remarks by the prosecutor in the absence of timely objection and request for action by the court offer no basis for reversal.”
It is argued that the attorney general argued with and bullied the defendant and other witnesses on cross-examination
Held: The attorney general’s remarks were not objectionable because the defendant had assumed an evasive attitude in cross-examination. Also there was no objection by his learned and astute counsel. (NOTE: the cross examination of the defendant by the attorney general continued for over 115 pages with only one objection by the defense.)
It is argued that the trial court should have charged as requested that there was no evidence of a willful and deliberate and premeditated murder by the defendant.
Held: The case was not submitted to the jury by the trial court on the theory of premeditated murder. It was submitted on the theory of homicide in the perpetration of burglary. Felony murder rule does not require evidence of premeditated murder.
The defendant’s constitutional rights under the fourteenth amendment to the United States Constitution were contravened by the summation and material variance of theory.
Held: There was no such infringement of the federal constitution.
The defendant argues that the verdict was against the weight of the evidence.
Held: The verdict not only is not contrary to the weight of the evidence but one to which the evidence inescapably led. There was much more evidence tending to establish his guilt. It was a circumstantial case with the evidence pointing to guilt from so many directions as to leave no room for reasonable doubt. From three unrelated sources the proofs point unerringly to guilty viz, a) the possession and use of the ransom money, b) the handwriting of the ransom notes and c) the wood used in the construction of the ladder. It is deducible to a moral certainty beyond a reasonable doubt that the defendant collected the ransom money and he was therefore the kidnapper – the weight of the evidence was with the state. Improper remarks by the prosecutor or in the absence of timely objection and request for action by the court are no basis for reversal.
The defendant argues that the trial judge impressed upon the jury his conclusion as to the evidence.
Held: It is always the right and often the duty of a trial judge to comment on the evidence and give to the jury his impressions of its weight and value and such comment is not assignable for error so long as the ultimate decision and disputed facts are plainly left to the jury.
A ladder found near the victim’s home on the night of the crime held properly admitted in evidence
Daily presence of prominent persons not connected with the case in court during the trial held not error. (Note: The writer believes the court was referring to the host of movie stars, radio personalities, sports stars, newspaper reporters (e.g., Walter Winchell) and many others giving autographs and being interviewed and photographed.)
Intent to commit a felony which intent was necessary to establish a burglary held was inferable from the stealing of the victim’s clothing.
The proof of value of victim’s clothing (sleeping suit) held not necessary to prove larceny for purpose of establishing burglary.
Summing up for state held not to be such as to bar application of the rule that in the absence of objection there is no ground for review.
On cross-examination of the defendant held not to amount to legal error in the absence of objection.
The claim of violation of the defendant’s rights under federal constitution is without merit.
The judge’s charge on reasonable doubt held free from error.
The stealing of a child and its night dress from its home followed by surrender of night dress merely as proof that the kidnapper had the child held to be indicative of an intent to commit larceny and to constitute that crime.
Held court properly refused to charge that the opinion of experts in handwriting based on mere comparison must be esteemed proof of low degree held the verdict was not against the weight of the evidence.
The rigid cross examination of the defendant held not to present error in the absence of objection by defendant’s counsel.
Refusal to charge there was no evidence that the defendant had committed a premeditated error held not error.
Reliance of state’s attorney in closing summation on theory that victim was beaten to death in nursery held not to have violated any right in the fourteenth amendment.
THE UNITED STATES SUPREME COURT
The United States Supreme Court refused to grant certiorari saying that Hauptmann’s right to a fourteenth amendment due process appeal had not been violated.
(Note: It is reported that as Hauptmann was conducted to the electric chair he was overheard to say, “Little men, little scraps of paper, little pieces of wood.”)
 The felony murder rule in Colorado is located at 18-3-102 C.R.S. Acting either alone or with one or more persons he or she commits or attempts to commit arson, robbery, burglary, kidnapping, sexual assault… the crime of escape… and in the course of or in furtherance of the crime that he or she is committing or attempting to commit, or of immediate flight therefrom the death of a person other than one of the participants is caused by anyone. See also: Criminal Law, Wayne R. LaFave and Austin W. Scott, Jr., St. Paul, Minn., West Publishing company 1972, page 545 et seq.
 State v. Glover 50 SW2d 1049 (1932)
 Whitman v. People 420 P2d416 (1966)
Waller, George-Kidnap, the story of the Lindbergh case
Scaduto, Anthony–Scapegoat, The lonesome death of Bruno Hauptmann, New York, G.P. Putnam’s sons 1976
Kennedy, Ludovic–The Airman and the Carpenter, New York, Viking Press 1985
Behn, Noel – Kidnap – The Crime – The Atlantic Monthly Press, 841 Broadway, New York, New York Copyright 1994