On appeal from the Essex County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J. Case and Heher, JJ., concurring in result.
[7 NJ Page 469] The interest created by the unusual circumstances here involved is accentuated by the assertion that the facts are unparalleled in this or any other jurisdiction.
The defendant was convicted of murder in the first degree and sentenced to life imprisonment as recommended by the trial jury.
The nub of the episode is a command by the husband to his wife to jump into the Passaic River. She did so and was drowned.
The defendant contends the proof did not establish that her entry into the water was intentional and in compliance with his order but indicates she slipped or fell. He says she had been "spanked" as presently narrated but he did not threaten her life with a weapon nor was he armed; there were no circumstances suggesting her life would be endangered by his violence if she did not jump, "nor was there evidence that he anticipated that, if she responded to the threat, anything more than a disciplinary dunking would result."
Whether the so-called "spanking" and the "disciplinary dunking" are properly termed or tenable under the proofs will be developed as we progress.
The defendant and his wife were married in 1946. He was then 22 years of age and she 16. He was employed as a boiler manufacturer and his wife was a part-time domestic. Their married life was stormy and controversial, with frequent violent quarrels and separations followed by reconciliations.
The deceased left her husband five days before the commission of the crime. On the night of April 8, 1950, the defendant, accompanied by his wife's stepfather, Frank Byrd, while trying to repair his car, noticed his wife, accompanied by two men, go into a tavern almost across the street at Market and VanBuren Streets. He got "mad." He went to the tavern and called her outside. They walked down Market Street and before she could explain where she had been, he "hit her in the face with my open right hand."
She broke away and fled, running toward the Jackson Street bridge. He chased "right behind her." When he caught up to her he "hit her three or four or five licks on the
shoulder with my open hand, also with my fist." The wife muttered: "Don't, don't, let me explain," and again broke away. He caught her near the steps of the bridge, where "I started punching my wife again mostly on the shoulders and the side of the face and my wife was crying and hollering."
She again attempted to elude him. "I was after her. My wife is hollering, 'Stop, stop,' and she is running and I catch up with her by a big rock that is near the bank of the river. I grabbed my wife by the collar and she is hollering she wants to explain everything, and I hit her again a half dozen or more times with both hands, fists and open hands both."
The wife sought to prevent the beating by holding his arms and legs. "I grabbed her by the collar and picked her up." She asked for forgiveness and was crying. "Then I told my wife to go ahead and jump in the goddam river and she put her foot in a hole into which some river water was seeping and she told me the water was too cold." There was some conversation as to where she had been during her absence. "Then I started to hit my wife again," and he accused her of staying at another man's house. He charged her with lying and called her many vile and filthy names, interwoven with intensive profanity.
"I was good and mad at this time. I then told my wife that if she did not jump in I would push her in. My wife and I are right at the edge of the river now, near the big rock. I am standing up and she is sitting down on the rock."
"My wife then got up from the rock and went to the side of the dock and I am standing on the side of her. I told my wife again and again that if she did not jump in the river I would push her in. At this time my wife is sitting on the edge of the dock and the third time I told her that if she did not jump in the river I would push her in I am standing to my wife's right with my back to the bridge and at this time my wife is holding on to the edge of the planking along the river bank and the water is about three or four
feet below her. The tide is high and after I told my wife the third time that if she did not jump in the river I would push her in she let go her hold and dropped in the river."
"I saw my wife go out about two or three feet into the river and she started to holler for me and asked me not to go away but to come and get her. She was struggling in the water and I saw that she was being carried away from the Jackson Street bridge downstream. I stayed there about a minute, I saw that my wife was being carried down the stream, I could just see the top of her head. I could not see her hands and I heard my wife still hollering, 'Don't go away.' I ran away to my mother's house thinking that my wife drowned."
After visiting his mother and his aunt in a fruitless attempt to borrow money to go away, the defendant went to a poolroom in the neighborhood and asked the owner, Dozier, to take him home. Dozier and another man, Hush, did so. During the automobile trip the defendant volunteered the information that he made his wife "jump overboard."
Later the same night the defendant again visited his mother's house and this time was able to borrow $2 from his grandmother which, with his own funds, was sufficient to purchase a bus ticket to Winchester, Virginia. He left Newark at 1:25 A.M. on April 9th and arrived in Winchester the following afternoon. There he surrendered to the police at about six o'clock in the evening.
All the quoted phrases in the narration of the above facts are taken from the defendant's statement, S-19. Presumably it was given freely, without threat or compulsion. That it was obtained in compliance with our rules and procedure and is voluntary is apparent from the fact that no question concerning its validity was raised either at the trial or on this appeal.
Another statement, S-18, was also admitted without objection. It varies in some details but in the main is a duplication and its truthfulness likewise was not questioned.
A bridge tender on the Jackson Street bridge, on duty that night, between ten and ten-thirty P.M. saw a man and a woman coming down Raymond Boulevard. The man was "like he was hitting her" and he was "slapping her like on the face." He was "dragging her across the boulevard" and "had her by the back of the neck or the collar or the hair." He gave a description as to how the two individuals were dressed. This testimony was the subject of a motion to strike and will be treated again hereafter.
The sister of the deceased testified that the couple were "arguing all the time and they didn't get along"; that in 1947 the defendant had assaulted his wife by stabbing her in the arm; that, on another occasion in the same year, he dragged his wife down to the Passaic River, where he made her "strip"; and that he had often said he wanted to kill her. This testimony, it is claimed, should have been excluded and will again be referred to in that regard.
The State proceeded on the theory that the deceased's jumping into the river was caused by the defendant's assaults and threats of physical violence, constituting well-grounded fear and apprehension on her part, and that the death amounted to a willful, deliberate and premeditated killing.
The alleged errors are: the denial of a motion for a directed verdict of acquittal upon the ground there was no evidence to support the indictment; the denial of requests to charge bearing upon the evidence necessary to justify the verdict; the court's refusal to charge that reasonable doubt could arise from the want of evidence or lack of proof; the court's charge as to the elements of murder in the first degree and murder in the second degree; the exclusion and admission of certain testimony; the failure to properly poll the jury when the verdict was returned; the limiting of cross-examination; the admission of certain photographs; and the refusal to strike the testimony of the witness Manning. It is further contended the verdict is against the weight of the evidence and that mere threatening words, accompanied by
blows not likely to be fatal in their severity, are insufficient to sustain it.
The defense moved for judgment at the close of the State's case and the denial of the motion is advanced as error principally because there was supposedly no evidence of an intent to kill the deceased.
Admittedly such intent is rarely provable by direct evidence and is generally inferred from other proof, but it is alleged there was no such proof here because the "spanking" administered, no matter how viewed, does not evidence such intention. "The blows were not of deadly character either in nature or in respect to the area of the body to which they were addressed," it is stated, citing Wellar v. People, 30 Mich. 16 (Sup. Ct. 1874), which holds where an attempt is not committed with a deadly weapon, the intent must be clearly felonious or the death will subject the assailant only to the charge of manslaughter.
It is also argued that the threat to push the deceased into the river if she did not jump does not add a deadly quality to the blows, which were not otherwise of that character, nor did the defendant have knowledge that the river at that point was sufficiently deep to cause drowning.
Likewise it is urged there was no evidence that her entry into the water was intentional but might have been by misadventure. An attempt is made to bolster this theory by the assertion that what the defendant did could not constitute the proximate cause of the murder and that the defendant did not cause the death, which was the result of either an accident or a voluntary act by another, to wit, the deceased herself.
The law was enunciated under somewhat similar circumstances as early as 1842 in the case of Regina v. Pitts, 1 Carr. & Mar. 284, reported in 174 Eng. Rpts. (Full Reprint) 509. The charge there was also murder by drowning. The body of the deceased was found in a river. The defendant and another person had been drinking ...