On appeal from the Passaic County Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
This is an appeal in a homicide case in which the defendant was convicted of second-degree murder and sentenced to 18 to 25 years.
The State charges the defendant stabbed the deceased, Daisy Thomas, through the heart with a bread knife and then pushed her through a plate glass window, while the defense contends the death of the deceased was caused not by a knife but by a large piece of plate glass which entered her heart when she went through the broken window pane.
Self-defense was also relied upon, it being asserted the deceased cut the defendant with the knife and whatever he did thereafter was in an endeavor to protect himself.
Some time in 1944 the defendant met the deceased, Daisy Thomas, and their friendship ripened into an intimate relationship which continued for a number of years without benefit of a marriage ceremony. A child was born to them and was known as Betty Thomas. Four years later they separated and the child was entrusted to the care of the deceased's sister.
Some time thereafter Daisy became acquainted and began going around with John Wallace, who subsequently moved into her apartment, and they informed relatives they were planning to marry. When this information was imparted to the defendant, he determined to take custody of his child. He succeeded in doing so and took her to his lodging.
The deceased, upon learning of the disappearance of her daughter, armed herself with a kitchen knife and sallied forth in search of her. Informed of the child's whereabouts, she entered the defendant's house and came out carrying the child in her arms. Holding the infant to her breast with her left arm and with the knife in her right hand, she started up the street, where she was accosted by the defendant. The incident which resulted in her death took place on the sidewalk in front of an empty store located at 152 River Street in the City of Paterson.
The State's theory is that the defendant attempted to take the child from Daisy Thomas and in doing so was cut on the hand with the knife she was carrying; he then became enraged, took the knife from her and plunged the blade of it into her body, piercing her heart and cutting the arm of the child. As he pulled the knife from the breast of the deceased, he pushed both mother and child through a plate glass window of the store front, shattering it.
Daisy's screams attracted nearby persons who hurried to the scene and found her lying across the broken window, partly inside and partly outside the store. The knife lay on
the sidewalk a few feet away. She was taken by ambulance to the hospital but died on the way.
The defendant was arrested and, prior to his trial, was examined by a doctor associated with the Paterson Board of Health who extracted a specimen of the defendant's blood for laboratory analysis to determine whether he had a venereal disease. The board of health, after making these tests, turned over to the police authorities an unused portion of the blood, which was analyzed by them to determine the defendant's blood type.
There were no eye witnesses to the affray and the State's case was based entirely upon expert testimony, plus the evidence of the witnesses who testified to the facts and circumstances as they developed prior to and following the occurrence of the incident itself.
Little more need be said concerning the facts as it is not contended the verdict was against the weight of the evidence, the appeal being limited to challenging (1) the accuracy of the court's charge defining murder in the second degree; (2) the propriety of expert testimony of the chief medical examiner as to what instrument caused the death of the deceased; and (3) the State's right to use the defendant's blood, which it is contended was taken against his will and without his consent, as evidence against him at his trial to show his blood was of the same type as that found on the handle of the knife in question. These matters will be disposed of in inverse order.
The same query is advanced a number of times but in each effort a different foundation or premise is relied upon.
First, it is alleged error was committed in permitting the evidence as to the defendant's blood type, since the blood was taken while he was in jail awaiting trial, when he was without counsel, on the ground that such evidence was a denial and an invasion of the defendant's rights and privileges against self-incrimination.
Second, it is said that such evidence was a denial and an invasion of the defendant's rights against unreasonable search
and seizure, guaranteed to him under the New Jersey Constitution.
Third, the evidence was improper under the New Jersey Constitution as it violated Article I, paragraph 1, of the Constitution of 1947.
Fourth, it was a denial of due process of law under the common law which is embraced in this State.
Fifth, the defendant was deprived of civil rights under chapter 13, secs. 241 and 242, of Title 18 of the United States Statutes and therefore deprived of his rights under the 4th, 5th and 14th Amendments of the United States Constitution.
(1) The defendant alleges he never gave his blood with the understanding that it was to be used against him at his trial for murder and, before a consent to such use could be spelled out, the State must show affirmatively that he had full knowledge of all the facts when he permitted his blood to be taken.
He relies upon McManus v. Commonwealth, 264 Ky. 240, 94 S.W. 2 d 609 (Ct. of App. Ky. 1936); People v. Corder, 244 Mich. 274 (Sup. Ct. Mich. 1928); State v. Matsinger, 180 S.W. 856 (Sup. Ct. Mo. 1915); State v. Horton, 247 Mo. 657, 153 S.W. 1051 (Sup. Ct. Mo. 1913); State v. Newcomb, 220 Mo. 54, 119 S.W. 405 (Sup. Ct. Mo. 1909), all of which involved examinations of the defendant against his will, while in jail, for the purpose of determining if he had a venereal disease, and where the evidence so procured was subsequently used in proof of a rape charge against him. He cites also Apodaca v. State, 146 S.W. 2 d 381 (Ct. of Cr. App. Tex. 1940), which ...