On writ of error from the former Essex County Court of Oyer and Terminer.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J. Heher, J. (Dissenting).
This is an appeal from a first-degree murder conviction returned without a recommendation for life imprisonment as allowed by statute, resulting in the death penalty.
The appellant, Ralph Cordasco, shot and killed his estranged wife, firing five bullets into her body at a close range, estimated by a ballistics expert to be within a few inches. The main facts are amply proved and corroborated and indeed are not denied by the appellant, who admits firing the shots.
The tragedy occurred on December 19, 1947, on North Seventh Street, Newark. Appellant and his wife were married in March, 1947, and shortly thereafter experienced marital difficulties causing a separation on September 12, 1947. About November 4th, the husband bought a gun, claiming it was for self-protection, while the State argues the purchase was made in preparation for the killing which ultimately resulted. It was acquired under an assumed name in Burlington, Vermont, where the husband journeyed to purchase Christmas trees for resale. He says threats had been made against him and he cut off the barrel of the gun so that he could carry it conveniently for protective purposes.
The husband was fifty years of age and the deceased wife thirty-seven. Originally there was opposition to the marriage by the mother of the wife, who later rather emphatically
expressed her objections, while the father was more kindly disposed and even encouraged the appellant's attempts at reconciliation after the breach had occurred. In addition to her opposition, the appellant says his mother-in-law at times made threats of physical violence against him.
The shooting occurred in broad daylight shortly after noon. According to the husband's version as to the sequence of events, he caught up with his wife when he saw her on the street, called her by name and walked alongside her. Seeking a reconciliation, he smiled affably and said, "Let's be more charitable toward each other for Christmas." When he spoke these words, she struck him across the mouth with her purse. He experienced a pain in the head and did not know what happened after the blow was struck until his next conscious moment about five-thirty that afternoon when he found he was wandering in the neighboring City of Orange. After buying a newspaper, he read an account of the killing and surrendered to the authorities early the next morning.
In a voluntary statement made to the police after he was taken into custody, he said:
"With my saying of the Christmas Spirit, she swung her purse and hit me in the mouth. Then I pulled the gun out of my pocket in my right hand and when she saw the gun she said 'Ralph.' That's all I can remember she said. I am pretty sure I did not say a word. I don't remember if I had shot her once or twice before she said, 'Ralph' and I don't know how many times I fired the gun. I was about two feet from her when I was pulling the trigger on the gun."
At the trial, however, on cross-examination, after first denying he fired the shots that killed his wife, he testified as follows:
"Q. Do you know who did? A. I held the revolver.
"Q. Who shot it? A. I did.
"Q. She was killed, wasn't she? A. I didn't kill her.
"Q. You didn't kill her? A. No.
"Q. Who did? A. I shot her.
"Q. You shot her? A. Yes.
"Q. How many times did you shoot her? A. I don't remember.
"Q. You don't remember? A. No, not at that time. I do know now.
"Q. How many times did you shoot her? A. Four or five."
The autopsical report revealed five bullet wounds, three of which entered the back and passed completely through the body. Another entered the right abdomen, passing through the body over the hip on the left side, and the fifth entered the mouth, coming out at the jaw. The medical testimony indicated that any of the wounds, with the exception of the one in the mouth, might have been fatal.
A number of witnesses produced on behalf of the State were near the scene of the shooting at the time and heard the shots and saw most of what took place. A written statement in narrative form, signed and executed by the appellant a few days after the shooting, and a subsequent transcript of questions and answers were admitted in evidence. There was testimony that, during the period of separation, the accused had been summoned to the Police Court on charges made by his wife of assault and battery and threats of violence, and there was evidence of the disposition of these charges as well as the conversation of the police magistrate with the appellant warning him to refrain from further annoyance of his wife. There was also proof of other threats made by the husband against his wife prior to the fatal shooting alleged in the indictment.
The questions presented for our consideration relate to the striking and excluding of certain testimony as to the mental condition of the defendant, error in the charge of the court with respect to insanity as a defense and in mitigation of the offense and its relation to provocation and its bearing upon a recommendation for life imprisonment, error in the charge with respect to the mental operations raising murder from second degree to first degree, the query as to whether or not the homicide was committed by lying in wait, the failure to charge, in effect, that the jury could not arrive at a verdict until it was unanimous on the recommendation of life imprisonment, error in charging that an acquittal was not sought but a concession of manslaughter was made, error with respect to the charge on provocation, and finally that the verdict was against the weight of the evidence.
The points raised will be dealt with in the order of their presentation.
When Dr. Sobin testified as to his observation of the mental condition of the accused in 1931, objection was made because of remoteness. The testimony was allowed, however, pending proof of continuance thereof to the time of the murder and Dr. Robie was produced to accomplish this end. He first saw Cordasco on December 24, 1930, at the mental hygiene clinic of the Overbrook Hospital. When he was asked the case history, another objection was made which brought about a colloquy between court and counsel. It was then contended the testimony was admissible as bearing upon the ability of the appellant to premeditate and deliberate.
The court, pursuing this theory, inquired of the doctor about his findings from his examination as to whether the appellant was capable of premeditation and deliberation on the 19th of December, 1947, the date of the crime. The answer was direct and positive admitting the accused was capable of both mental operations and, when the witness was asked his conclusion as to whether or not Cordasco was in a mental condition to know the nature and quality of his acts and whether they were right or wrong, he replied:
"That requires two answers, I believe, and the answer to the first part is I did come to a conclusion; to the second part my answer is that my conclusion was that he was able to distinguish between right and wrong. * * * And he knew the nature and quality of his acts."
The court then ordered the previous testimony stricken, which is the basis of the alleged error.
If our rule on insanity is to remain, the mere recital of the question indicates the obvious answer. If the defendant knew the nature and quality of his act and was conscious that it was wrong and had the ability to deliberate and premeditate, the testimony offered did not constitute a defense, was immaterial and was therefore properly stricken.
Underlying and interwoven in the reasoning advanced by the appellant, there is the contention that the rule of insanity
as presently enforced is not equitable, fair or just and should be so changed as to permit the jury, where there is any form of insanity or maladjustment even though it does not come without our rule, to give it consideration in mitigation of or to reduce the degree of murder or as an aid in deciding whether a recommendation of life ...