On appeal from the Essex County Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
The jury returned a verdict against the defendant of guilty of murder in the first degree without a recommendation of life imprisonment and the mandatory death sentence was imposed by the court.
The facts are not in dispute. The defendant, a shop steward 33 years of age, left his home in Newark at approximately 7:40 on the morning of January 9, 1953, drove his car to the plant and reported to his foreman that he was suffering from a heavy cold and was not going to work that day. He spent the entire morning and a part of the afternoon consuming liquor at various taverns, confining his drinking to straight whiskey with water for a chaser. At about 2:30 P.M. he borrowed $100 from a loan company,
pledging as security the bill of sale for his truck. He then proceeded to a sporting goods store where he purchased a shotgun, and a box of shells, the latter containing 12-gauge double-O buckshot, the heaviest sold by that store. He bought the gun because he "knew there was a union meeting that night and I wanted to straighten out three guys in the union; these were John Waters, the business agent, a fellow by the name of Coogan, the organizer, and a fellow by the name of Mitchell of the Executive Board." Using a saw which he had in his car, he sawed off the barrel of the gun.
At about 6 P.M. and then again a short time later, he returned to the store to obtain instructions from the clerk as to how to operate the gun. The defendant then resumed his visits to various taverns where he consumed several more drinks of whiskey. At about 8 P.M. he drove to the Continental Ballroom on Broad Street, Newark, to attend the union meeting, taking the loaded shotgun with him. During the meeting John Waters got up to leave and the defendant shouted to him "You're not going anywhere," and started to bring his gun into shooting position. Waters ran into another room and closed the door, so the defendant fired a shot in the general direction of the door. He then forced his way into the room and in the ensuing struggle with Waters lost his gun, but managed to escape from the building. It is to be noted that the State endeavored to strike any testimony relating to this shooting, but that the defendant and his counsel insisted that it be admitted in evidence.
The defendant then returned to the sporting goods store and purchased another shotgun, sawed off the barrel, loaded it, and decided to look for Samuel Cuzzolino, nicknamed Trixie King, a man with whom he had previously had several run-ins and towards whom the defendant admitted great animosity -- "If I found him it was in my mind to kill him. I figured that I was in it and that I might as well go all the way." The defendant was driving around Newark looking for Trixie King when he saw the car belonging to Edward Foster, another of his enemies, parked in front of Freddie's Tavern on Mulberry Street. The defendant decided to enter
the tavern and "give Foster a blast and square up some debts with him." Spying Foster at the bar he called to him and Foster dashed across the floor and hid behind the jukebox. The defendant fired several shots in his direction, but missed him. The defendant then went outside, reloaded the gun, returned to the tavern and fired another blast into the men's room and then left. It was then about 9:30 P.M.
He then reloaded his gun and proceeded to cruise around in his car, again looking for Trixie King. Upon discovering Trixie's car outside the Six Corners Tavern the defendant entered the bar, had two drinks of whiskey, and then went outside returning within a few minutes with his shotgun. Taking a position about six feet behind the chair where Trixie King was seated he called out -- "Well, Trixie, I waited a whole year for this," raised the gun to his hip, and as Trixie dove for it, pulled the trigger and fired a blast that hit Trixie in the stomach, killing him almost instantly. The defendant left the tavern and drove to two other taverns, looking for some of his other enemies. He was finally captured by the police in front of Freddie's Tavern, where he was seated behind the wheel of his car with the shotgun in his lap.
Defense counsel admits that the defendant committed the killing and that the shooting was willful and deliberate, but he contends that there was an absence of the premeditation essential to a conviction of first degree murder. At the trial he attempted to prove insanity as well as such intoxication as would deprive the defendant of the ability to formulate the specific intent to kill necessary for first degree murder. On these issues the defendant and other witnesses were called, whose testimony dealt with head injuries received by the defendant as a young boy, while in the Army, and in later life. There was also testimony as to his habits of excessive drinking. At one stage in the trial the court, in the absence of the jury, held an inquiry pursuant to N.J.S. 2 A:163-2 into the defendant's sanity, and as a result of this inquiry the court was satisfied as to the defendant's ability to proceed with the trial. The issues of insanity and intoxication
were submitted along with other issues to the jury. The jury returned a verdict of guilty of murder in the first degree without any recommendation for life imprisonment, and the appeal is here pursuant to Article VI, Section V, paragraph 1 of the New Jersey Constitution and R.R. 1:10-1(b).
Counsel contends that there was reversible error in admitting testimony of the shooting in Freddie's Tavern, because it was an isolated offense unconnected with the killing of Trixie King, and because such testimony was prejudicial to the defendant and highly inflammatory. It is, of course, true that evidence of the commission of other crimes by the defendant is inadmissible to prove the commission of the offense for which he is being tried, Bullock v. State, 65 N.J.L. 557, 574 (E. & A. 1900); State v. Young, 93 N.J.L. 396, 404 (E. & A. 1919); State v. Donohue, 2 N.J. 381, 388 (1949); State v. Schmieder, 5 N.J. 40, 47-48 (1950). It is, however, equally well settled that where the commission of a former crime evinces a state of mind that is carried forward and is shown to exist at the time of the commission of the crime charged, and the former crime is so related to the crime charged as to time, place, and circumstances that the state of mind may be said to be continuous, evidence of the former crime is admissible, State v. Deliso, 75 N.J.L. 808, 816-817 (E. & A. 1908); State v. Ehlers, 98 N.J.L. 236, 247 (E. & A. 1922); State v. McNamara, 116 N.J.L. 497, 499 (E. & A. 1936); see also Uniform Rules of Evidence, Rule 55. As stated in State v. Donohue, supra, 2 N.J. 381, at 388, "such evidence is admissible, however, to show malice or ill will on the part of an accused toward the victim or when it tends logically to prove against him some particular element of the crime for which he is being tried, State v. Lederman, 112 N.J.L. 366 (E. & A. 1934)."
The testimony concerning the shooting of Foster at Freddie's Tavern was admitted only for the purpose of revealing the defendant's state of mind; it was evidential on the issue of whether the killing was premeditated. The
shooting took place approximately one hour prior to the killing of Trixie King; the shooting was done with the same gun; it was a part of the continuous round of killings on which the defendant had determined. The trial judge properly instructed the jury as to the effect of this testimony:
"You will recall that I allowed certain testimony to be introduced into evidence by the State regarding a shooting at 424 Mulberry Street where defendant allegedly shot at one Foster. That evidence was allowed by the Court for the limited purpose of showing the state of mind of defendant, Roscus, within several hours of the killing of Cuzzolino and for no other purpose.
Thereafter, the defendant, as part of his defense, introduced evidence not only of the shooting at 424 Mulberry Street but also of a shooting which occurred earlier in the evening at the ...