On appeal from Passaic County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
The appellant was convicted in the Passaic County Court of murder in the first degree with a recommendation of life imprisonment, from which judgment and sentence he appeals.
The defendant operated a tavern in Paterson and, together with his wife, owned a one-third interest in an inn in Singac. His aunt owned a third interest and the deceased, Alfred Donato, the other third. The inn was operated and managed by Donato and the defendant's wife.
At about six o'clock in the evening of August 13, 1948, the defendant received a telephone call at the tavern from Donato informing him the latter was about to leave the inn because he had been drinking. Donato was prevailed upon to remain on duty until Mrs. DePaola relieved him, which she did soon thereafter.
Donato left the inn but returned later in the evening visibly intoxicated. About midnight, Mrs. DePaola left in her car and was followed by Donato in his. Three customers, one Herbert Walthor, his wife and Lester Taylor, followed in another car and overtook them. After a roadside conversation, all returned to the inn with Walthor driving Mrs. DePaola's car, in which she and Donato were passengers. On arrival, Walthor left them in the car and attempted to disable Donato's automobile by disconnecting the ignition wires. While he was thus engaged, Donato and Mrs. DePaola drove off in her car. The Walthors again attempted to find them but were unsuccessful and returned once more to the inn, where they found the defendant and related to him what had occurred. It was then about one-thirty in the morning of August 14th.
The defendant drove around looking for his wife until about two-thirty when, not having found her, he went to his tavern in Paterson and telephoned his home, receiving no answer. Half an hour later, he called again and this time his wife answered and told him she had closed the inn at two-thirty. He did not return to his house immediately but visited a friend, arriving home about seven in the morning.
The defendant then informed his wife he was going to find Donato to announce he was giving up their interest in the inn and severing all business relations with him. A dispute ensued during which, he says, his wife attempted to stop him by threatening him with a gun and, when he tried to take it away from her, there was a scuffle and the gun was discharged. The State's version of this episode is substantially different. It contends the defendant entered his home with the intention of murdering his wife, after which he planned to kill Donato, and it was in pursuance of this intent that the shots were fired. Mrs. DePaola fled the scene and took refuge with a neighbor who phoned the police.
The defendant went to the Donato house, where he found Mrs. Donato in the kitchen. On inquiry, he was informed her husband was upstairs, whereupon he went to the foot of the stairs with a drawn gun and called to him. The defendant asserts Donato then appeared at the head of the stairway and commenced firing at him and he returned the fire in self-defense. Mrs. Donato, on the contrary, testified he started to climb the stairs gun in hand, with Mrs. Donato hanging on to his arm endeavoring to prevent him from ascending. He continued, however, to the second floor landing and fired three shots at Donato. Mrs. Donato then succeeded in pulling him down the stairs but he again ran up and while doing so fire his gun twice shouting, "I got you. You can't get away." He then said, "I killed him. He couldn't get away any more." Mrs. Donato finally succeeded in her efforts in pushing him out the front door.
The defendant went to his automobile, reloaded his gun and fired at the upstairs windows of the Donato house and
the adjoining half of the duplex where Francisco Donato, brother of the deceased, lived with his wife and her two brothers, Charles and Alfred Romero. He claims this action was prompted by his having been fired upon as he was leaving, though this story is not substantiated by the testimony of witnesses in the neighborhood. The defendant again approached the victim's house and was on the porch when he was overtaken and arrested by a police officer who had arrived on the scene.
After the arrest had been made and the affray had subsided, Alfred and Charles Romero came out on the adjoining porch, the latter carrying a gun which he surrendered. The officer asked Charles to accompany him to the police station but did not insist upon it when informed by the brother that Charles had nothing to do with the shooting.
The defendant was taken to police headquarters and placed in a cell. He was subsequently indicted for murder, after Donato died of the injuries inflicted, and the trial, as already noted, resulted in conviction with a recommendation of life imprisonment, the sentence imposed.
Having concluded, after a careful study, there should be a reversal of the judgment of conviction below for the reasons hereinafter particularly set forth, and being mindful such result will necessitate a new trial, we shall endeavor to meet fully all the matters complained of in an effort to clarify the issues presented as they will, in all probability, again be encountered when the case is retried.
It is urged error was committed in the charge of the court in reference to the distinction between first- and second-degree murder, referring specifically to the portion of the charge which said:
"The distinguishing feature between the two degrees of murder is the intent with which the homicidal act was done. * * * The distinction between the two degrees of murder lies largely in the intent -- in first degree murder the intent is to take life and the act must be willful, deliberate and premeditated. In second degree murder there is an attempt to do grievous bodily harm without the intent to take life."
Thus second-degree murder was premised on the absence of an intent to take life and counsel stresses that murder committed intentionally and willfully but without deliberation and premeditation would nevertheless be murder in the second degree. In fact, our courts have so held on innumerable occasions.
In State v. Mellillo, 77 N.J.L. 505 (E. & A. 1908), the court on an assignment challenging the accuracy of the charge that "murder in the second degree is devoid of the element of the intention to kill" admitted the statement was incorrect, and this was followed in State v. Mosley, 102 N.J.L. 94 (E. & A. 1925), where the charge on second-degree murder was likewise criticized and held erroneous because it stressed the distinguishing feature between the degrees of murder to be the intent with which the homicidal act was done.
Similar criticism was made of the charge in State v. Noel, 102 N.J.L. 659 (E. & A. 1926), and also in State v. Martin, 102 N.J.L. 388 (E. & A. 1926), but in each of these cases, the defendant having been convicted of murder in the first degree, it was held the failure to correctly charge second-degree murder was harmless error.
The principle there determined is now deeply imbedded in our fundamental law and has been consistently followed in many cases. We are not inclined to overrule these decisions. However, our adherence to the law as already adjudicated does not justify a trial court in repeating to a jury a charge which has on numerous occasions been declared unsound by our court of last resort in the respect complained of.
It is next asserted there was error in the refusal to charge as requested that "reasonable doubt may be engendered by lack of evidence. If the State failed to produce evidence sufficient to satisfy you of the guilt of the defendant beyond a reasonable doubt, he is entitled to an acquittal even though that doubt may be engendered merely by lack of production of evidence by the State" -- constituting the defendant's eleventh request to charge.
State v. Andrews, 77 N.J.L. 108 (Sup. Ct. 1908), is cited to sustain this theory. There the Supreme Court reversed a conviction below because of the qualification of a request to charge made by the court, holding: "Under these circumstances the instruction that a reasonable doubt must be one founded upon some evidence that was presented in the case was erroneous, as it excluded all reasonable doubt that may have arisen from the lack or want of evidence."
The court need not charge in the exact language requested provided the subject matter of the request has been fully covered, nor has the defendant the right to choose the language in which the court should state the pertinent instructions he is entitled to. State v. Tansimore, 3 N.J. 516 (1950); State v. Bunk, 4 N.J. 461.
Admittedly the court charged the defendant was presumed to be innocent and that this presumption continued until the State established his guilt beyond a reasonable doubt; likewise that the State had the burden of proving beyond such doubt every material element of the crime; but, when reference was made to the reasonable doubt so created, the court specifically said "upon such proof," referring, of course, to the evidence submitted. Nowhere in the charge does it appear that such reasonable doubt might possibly have sprung from the fact that there was a lack or want of proof or evidence.
In the Andrews case, supra, the court said:
"A doubt, to be reasonable, must arise out of the evidence, or want of evidence, after a full consideration by the jury of all the evidence in the case."
Reasonable doubt could arise from the want of evidence or lack of proof but the jury was not so advised. The refusal to charge as requested, we think, was reversible error.
The defendant took the stand in his own behalf and on cross-examination admitted he had been convicted of crime. He was then asked if he had not on various occasions made out application for liquor licenses under oath wherein he had given ...