On appeal from Essex County Court, Law Division, Criminal.
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).
The appellant appeals from a conviction of murder in the first degree. The trial jury not having returned a recommendation of life imprisonment, the death penalty was imposed under the statute.
The fatal shooting occurred on Sandford Avenue in the City of Newark in the early morning of September 4, 1948. The defendant does not deny the shooting of Nettie Waters, which was abundantly proven, but asserts he had no recollection of it and contends if he is guilty of any offense, it is only murder in the second degree or manslaughter.
Buford Tansimore is fifty-two years old. He lived in Newark and then moved to East Orange, where he first met Nettie Waters early in 1936. They went around together for three or four months, became intimate, occupied the same bedroom and this arrangement continued even after the deceased's daughter and her baby moved into the apartment. The baby was later taken to the defendant's mother's home in Virginia and he contributed toward her support.
The parties continued to live together up to October, 1946. The defendant was a good provider. He purchased furniture and many things for the home and bought clothes, dresses, fur coats and a limited amount of jewelry for the deceased.
The defendant's health was not of the best and he was confined to the Beth Israel Hospital in 1939 to undergo a surgical operation for a lung abscess.
In 1943 disagreements cropped up between the parties and, as a result of a conversation with a friend of his, the defendant began to follow the deceased and found her going with another man. This occurred on a number of occasions and ultimately an altercation took place between the defendant and a man named Downer in which blows were exchanged. The deceased promised reformation, admitting she had been on familiar terms with Downer and unfaithful to the defendant. This, according to his story, had a most depressing and upsetting effect upon him, causing him to lose his appetite and become extremely nervous and destroying his ability to work
for about three and a half months. During this period he was taken care of by the deceased's daughter.
In 1944 Tansimore and the Waters woman purchased a house in East Orange, both contributing, and she lived there until September, 1948. In 1945 the defendant went into the general contracting business but in 1946 Downer again appeared upon the scene and proved to be the same disturbing element. The defendant's health was again adversely affected and despite the pleas of the deceased he moved elsewhere. There were a number of distressing incidents and she was accused of stealing money, which resulted in complaints to the local police department, but despite these difficulties the defendant and the deceased saw each other daily. She, in the meantime, attempted to persuade him to forget their differences and resume living together. She repaid certain sums of money to him, which does not seem to be disputed. The intimate relationship continued up to the fatal day.
Early in September the defendant made inquiry of the deceased's daughter as to where she and her mother were going over Labor Day and was informed they would not accompany him on his contemplated trip to Virginia as they were going to North Carolina and she thought her mother was going there with one Arthur Hall. When he met the deceased he repeated his invitation with respect to the Labor Day trip, without avail.
On September 3rd the defendant drank quite heavily and again visited the deceased and asked whether she would go to Virginia with him, which she refused to do, saying that if she wasn't good enough for the defendant to live with, then she wasn't good enough to go to Virginia with him.
That night he went to the house of Rowlett, a friend of his, brought some whiskey with him and drank to a considerable extent. He told Rowlett he wanted to trail his girl friend because she was going away and Rowlett agreed to accompany him with his car on this errand. The defendant drove his own automobile to the garage, picked up a revolver and some shells and put the gun inside his shirt where it was not visible. Rowlett first drove to the deceased's place of employment
and found it closed. They then went to the deceased's home but her car was not there so they journeyed on to her garage and finally located her car on Olcott Street facing Central Avenue.
They secured and imbibed in more liquor and then the defendant slept while his friend watched the deceased's car until one A.M. The defendant felt sick and expressed his intention to go home but was persuaded by Rowlett to take another nap. He was awakened later and informed that people were coming out of the house. He saw the deceased cross Olcott Street with five other people carrying some baggage.
Rowlett and the defendant followed the deceased's car and after some time the defendant told Rowlett to close in, which he did, by cutting off her car and forcing it to stop. The defendant got out, walked back to the deceased's car, while Rowlett drove on to the next intersecting street, where he waited. In a moment he heard shots. Then the defendant returned, opened the door and got into the car. When asked as to what happened, the defendant said, "Oh, nothing happened. I just wanted to see -- I only done that to scare the people." He told Rowlett to take him home.
As a matter of fact, when Tansimore left Rowlett's car, he walked swiftly to the decedent's car, had his hand on his belt and demanded, "Everybody get out." Mocile Lassiter and the decedent both got out of the car and stepped on the sidewalk and as they did the shooting began. Six shots were discharged. There was no conversation between the defendant and the decedent excepting the order to get out of the car.
The deceased was wounded by five or six bullets, all of them entering either from the side or from the back. One wound was in front and near the lobe of the left ear surrounded by considerable powder smudge. This bullet entered the skull, passing backward and upward, penetrating the brain, and was classified as fatal. The second bullet passed through the left arm, entered the chest on the left side and continued to cross the chest in a slightly forward direction, piercing the heart after passing through the right lung. This wound was also fatal. The third wound was below the arm pit in the
right chest, while the fourth was in the back, the bullet going through her skirt slightly to the left of the mid-sacral line. It penetrated the intestines and was also fatal. The fifth bullet was in the back of the head. It took an upward direction. There was also a wound called a defense wound between the index and the little fingers of the left hand.
There was testimony that the bullets extracted from the decedent's body were fired from a gun found on the defendant at the time of his arrest.
The defendant claimed on the night in question he followed the deceased simply to determine whether she was being good and he carried the loaded gun for protection. He denied memory of the killing although he told in great detail everything up to the moment of it and said the deceased struck him in the mouth and from that point on he remembered nothing until he found himself in his Cadillac automobile in New Brunswick on the way to Virginia.
The defendant's history showed he suffered from syphilis for many years and following the lung operation in 1939 he attempted suicide. Dr. Perlman was produced as to his attempted suicide in 1939, Dr. Maisel as to his syphilitic condition and Dr. Brodkin as to his lung operation. Dr. Bergman, a specialist in neurology and psychiatry, testified as to an examination made of the defendant following his attempted suicide. Dr. James B. Spradley, an eminently qualified specialist in the diagnosis and treatment of nervous and mental diseases, testified in answer to an hypothetical question the defendant's mental processes were so prostrated during the period of the deceased's assault upon him that the defendant did not have the capacity to form an intent and to deliberate murder.
There was no attempt to acquit the defendant of the charge made against him but counsel's endeavor was to reduce the degree of homicide to either second-degree murder or manslaughter.
Twelve different points are raised on the appeal and will be considered in the order presented.
First it is contended there was error when the court charged:
"The distinguishing feature between murder of the first degree and murder of the second degree is the intent with which the homicide was committed. In first degree murder there must be an intent to take life; in second degree murder the intent need merely be to do grievous bodily harm."
The appellant asserts deliberation and premeditation are the real distinguishing features between murder in the first degree and murder in the second degree and not the intent to take life as recited above. He relies upon Wilson v. State, 60 N.J.L. 171 (E. & A. 1897), and State v. Mangano, 77 N.J.L. 544 (E. & A. 1909), where Justice Parker said:
"It is therefore settled in this state that murder in the first degree cannot be predicated on the mere existence of an intent to kill at the time of committing the crime. * * *
"It should be evident, from what has been said, that an intent to kill carried out, does not constitute murder in the first degree unless coupled with the premeditation and deliberation prescribed by the statute, and which, as we have seen, require time -- not a long time -- not necessarily an hour or a minute, as was said in the Donnelly case [ Donnelly v. State, 26 N.J.L. 463] * * *."
Appellant argues murder in the first degree has three requisite elements and that the State must establish and prove it was willful, premeditated and deliberate. We have no quarrel with this thought but the record indicates the court with clarity, simplicity and force charged that the murder was presumed to be in the second degree and:
"If the State proposes to raise the criminal responsibility for an unlawful homicide from murder in the second degree to murder in the first degree it must accept the burden of proving beyond a reasonable doubt that the killing was a wilfull, deliberate, and premeditated killing, as set forth in the statute defining murder in the first degree."
The court also clearly and carefully defined "willful, deliberate and premeditated" in the exact language approved many times by our courts of last resort and concerning which no complaint is made here. In his charge the trial judge used the word "premeditated" seven times, the word "deliberate" six times and the word "willful" three times. The court in part charged:
"Normally, premeditation comes first; that is, an entertainment by the mind of a design to kill, followed by deliberation, the weighing of considerations pro and con as to whether the design shall be carried into effect, after which the killing, being determined upon and carried out, it becomes wilfull, deliberate, and premeditated in the sense intended by the statute. No particular length of time need intervene between the formation of the intent, the purpose to kill, and its execution. It is not necessary that the deliberation and premeditation should continue for an hour or for a minute; it is enough that the design to kill be fully conceived and purposely executed. If the design is found to exist, even though it is executed in a very short space of time, that is sufficient under the law. Deliberation and premeditation, while they must exist, need not be long. If the killing is wilfull, deliberate, and premeditated, it is murder in the first degree, even though no special motive is shown."
A reading of this portion of the charge, coupled with the paragraph preceding it already set out in this opinion, illustrates the lack of merit in the appellant's argument that it failed to explain the statutory elements of first-degree murder.
In determining whether or not error was committed, a single sentence may not be extracted and construed without regard to the context of the entire charge. State v. Banusik, 84 N.J.L. 640 (E. & A. 1906). The court cannot state the law of the case in a single sentence and the charge must be read as a whole in the light of a sensible construction to determine its legal worth. State v. Tachin, 92 N.J.L. 269 (Sup. Ct. 1919); affirmed, 93 N.J.L. 485 (E. & A. 1919). Although certain sentences in a charge taken alone may need some amplification to render them accurate, yet if such amplification be given in the context so that the jury cannot be misled, there is no error justifying reversal. State v. Frank, 90 N.J.L. 78 (Sup. Ct. 1917); affirmed, 91 N.J.L. 718 (E. & A. 1918). Viewed with these principles in mind, the charge was full, fair, accurate and in accord with the recognized authorities cited many times in murder cases.
Both before and after the particular sentence criticized, the court repeatedly instructed the jury before it could convict of murder in the first degree it was essential to find the defendant willfully, deliberately and with premeditation killed the deceased. It scrupulously directed consideration should
be given to all of the facts and circumstances and left it to the jury to determine the question of guilt or innocence and the degree of murder, if any:
"Under this indictment and the law of our State there are five possible verdicts returnable: first, guilty of murder in the first degree; second, guilty of murder in the first degree with a recommendation of life imprisonment; third, guilty of murder in the second degree; fourth, guilty of manslaughter; or, fifth, not guilty."
We see no error in the court's charge in the respect complained of.
Point II is alleged error in the failure to charge the defendant's request No. 19 in this language:
"The State must prove beyond a reasonable doubt that the killing in this case was wilfull, deliberate and premeditated. If any one of these essential elements is missing, you cannot convict the defendant of first degree murder,"
the argument advanced being the jury was not informed that the absence of one of these three necessary ingredients would reduce the offense to one lower than first-degree murder.
The court need not charge in the exact language requested and, if the subject matter of the request has been charged and fully covered by the court, there is no error. It is not the right of the defendant to choose the language in which the court should state to the jury the pertinent instructions to which the defendant is entitled. State v. Juliano, 103 N.J.L. 663 (E. & A. 1927).
Although the court here did not adopt or use the identical phraseology submitted in the request to charge, it fully covered the subject referred to completely and accurately in the main charge. After dwelling upon the burden of proof and the question of reasonable doubt and calling the jury's attention to the presumption in law that the killing was murder in the second degree, the court said that if the State proposed to raise the criminal responsibility of the defendant from murder in the second degree to murder in the first degree:
"* * * it must accept the burden of proving beyond a reasonable doubt that the killing was a willful, deliberate, and premeditated killing, as set forth in the statute defining murder in the first degree."
The court specifically pointed out that each of the elements involved must be proved, which was the plain import of the request submitted:
"The defendant in this case, as are defendants in all criminal cases, is presumed to be innocent, and unless the crime charged and the degree of crime charged and each and all of its elements are proved beyond a reasonable doubt, he is entitled to be acquitted. He cannot be convicted of any crime or degree of crime unless he is proved guilty thereof beyond a reasonable doubt, and the burden of proving the guilt of the defendant and the ...