For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Jacobs, J. Heher and Wachenfeld, JJ., concurring in result.
The defendant, Richard Larry Hunt, was convicted of murder in the first degree and was sentenced to death. He appeals to this court as of right. R.R. 1:2-1(c).
The deceased, Helen Elizabeth Hunt, wife of the defendant, was shot to death in New Brunswick on June 20, 1956. The State alleges that the defendant murdered her and that the murder was willful, deliberate and premeditated. Its evidence, furnished by eyewitnesses and others, was to the following effect: The defendant married Helen in 1950 while he was in the Army. They lived at the Baltimore home of Helen's father until the defendant was sent overseas. Helen then lived with her sisters in New Brunswick, but when the defendant returned he and his wife again lived in Baltimore. They quarreled frequently and Helen was threatened often and was occasionally beaten by the defendant. In March 1956 the defendant threatened to cut Helen with a knife and her father asked him to leave. He left while Helen and their three children (Patricia, Rodney, and Ivy) remained at her father's home. On June 3, 1956 the defendant told Helen that he had a gun and was going to kill her. Her father, who had listened to their conversation, immediately called Helen's sister Bertha, who then took Helen and the children to her home in New Brunswick. On June 19, 1956 the defendant came to New Brunswick and on the following day he met his wife Helen, Thomas Williams, husband of Helen's sister Hannah, and Bertha as they were about to enter Bertha's home. Bertha saw the defendant carrying a gun in his hand; he told her to move out of the way and that he was going to kill Helen. Bertha's husband William Harley had come to the door and had told the defendant not to shoot, but the defendant repeated that he was going to kill Helen. William Harley, followed by Helen with her infant daughter Ivy in her arms, started running across the street but the defendant fired, striking Helen several times. One of his shots proved fatal. After the shooting the defendant was hit two or
three times with a baseball bat by Thomas Williams. The defendant, though injured, fled and was later apprehended in California and was returned to New Jersey for trial.
The defendant admits that he was near Bertha's home on June 20 and that he was carrying a gun. His story was that he left Baltimore for New Brunswick on June 19 intending to talk to his wife and to ask her to return with him and their children to Baltimore. On June 20 he saw Helen and the others in front of Bertha's home and he asked Helen whether he could talk to her. At that point Bertha told him to get away or she would call the police. He tried to talk to Helen but Bertha kept screaming "Get away from here." In response to an inquiry as to what then happened, he testified: "I don't know whether it was spots come across my eyes or whether I was hit, I don't know what happened. But during the scuffle Bertha pushed me back and I tried to get around Bertha because I never would push Bertha I would always try to get around her, and now I know that I was hit on the head with a baseball bat." He further testified that as he was lying on the ground he could feel something hitting him on the arm but "couldn't make out just what it was"; that he managed to get up but "the licks wouldn't stop"; and that "after the licks wouldn't stop that I felt, I got up and when I got up I reached in my pocket and I squeezed the trigger, then it didn't fire so I pulled it back and it still didn't fire so I put it back again and when I did I can't be sure whether I heard somebody say he got a gun or not, but anyway I just saw people leaving me and the picture I pictured was in the middle of the street and I started firing." The defendant did not remember what he did after that but denied that he ever threatened or intended to kill his wife. His present position is that he intended only to talk to his wife; that Bertha and the other relatives prevented him from doing so; that he was struck several times by the baseball bat; and that thereafter he fired wildly but does not know what actually happened. On appeal, his counsel does not question the legal sufficiency of the State's proof
that he committed willful, deliberate and premeditated murder, but he does assert that there were serious legal errors during the proceedings below which deprived the defendant of a fair and lawful trial. If there were such errors the defendant is admittedly entitled to a new trial regardless of the force of the testimony against him. See State v. Orecchio, 16 N.J. 125, 129 (1954); State v. Wynn, 21 N.J. 264, 271 (1956). Cf. Meszaros v. Gransamer, 23 N.J. 179, 188 (1957).
The May 1956 term of the Middlesex County grand jury returned Indictment No. 301-56 in the matter of The State of New Jersey v. Richard Larry Hunt. It charged that Helen Elizabeth Hunt had been murdered but omitted the name of the defendant in the charging part though it was set forth in the caption. The defendant pleaded not guilty and moved to dismiss the indictment because of the omission. See 27 Am. Jur., Indictments and Informations, § 79 (1940); 42 C.J.S. Indictments and Informations § 127 (1944). The trial court refused to dismiss the indictment but postponed the trial, and thereafter Indictment No. 301A-56 was returned by the September 1956 term of the Middlesex County grand jury. This indictment specifically charged that "Richard Larry Hunt, willfully, feloniously and of his malice aforethought, did kill and murder one Helen Elizabeth Hunt, contrary to the provisions of N.J.S. 2 A:113-1 and N.J.S. 2 A:113-2." A motion to dismiss this second indictment was denied. The defendant now urges that the trial court erred in failing to dismiss the first Indictment No. 301A-56. Assuming that to be so it is immaterial here, for the defendant was never tried under that indictment but was tried only under Indictment No. 301A-56. We find no merit in the defendant's contention that the failure to dismiss the first indictment "constituted double jeopardy" and "vexatious, cruel and inhuman treatment." The defendant was not in jeopardy under the first indictment (see State v. Locklear, 16 N.J. 232, 235 (1954)) and its pendency did not prejudice his defense to the second indictment or any of his constitutional rights. See State v.
Faulks, 97 N.J.L. 408 (Sup. Ct. 1922), where the defendant was tried and convicted under an indictment while a prior indictment for the same offense was pending. The former Supreme Court, in an opinion by Justice Parker, joined by Chief Justice Gummere and Justice Kalisch, found no difficulty in sustaining the conviction.
The defendant contends that Indictment No. 301A-56 was invalid because the members of the grand jury which returned it were advised by the county prosecutor of the earlier indictment by the previous grand jury. He does not suggest that the second grand jury was illegally constituted or biased (see Pierre v. State of Louisiana, 306 U.S. 354, 59 S. Ct. 536, 83 L. Ed. 757 (1939); State v. Borg, 9 N.J. Misc. 59 (Sup. Ct. 1931)), and we are not here concerned with the detailed nature of the showing before it. See State v. Donovan, 129 N.J.L. 478, 483 (Sup. Ct. 1943); State v. Garrison, 130 N.J.L. 350, 351 (Sup. Ct. 1943); State v. Grundy, 136 N.J.L. 96, 99 (Sup. Ct. 1947). Cf. Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956); Notes, 65 Yale L.J. 390 (1956); 62 Harv. L. Rev. 111 (1948). The same witnesses who testified before the first grand jury, including the eyewitness Bertha Harley, testified before the second grand jury, and in the light of the circumstances the defendant could in no wise have been prejudiced by the fact that the second grand jury knew that an earlier indictment had been returned. His present complaint grounded on that fact has no legal merit. See United States v. Rintelen, 235 F. 787, 789 (D.C.S.D.N.Y. 1916); Fitts v. Superior Court in and for Los Angeles County, 4 Cal.2d 514, 51 P.2d 66, 70, 102 A.L.R. 290 (Sup. Ct. 1935). Cf. Brinegar v. United States, 338 U.S. 160, 171, 69 S. Ct. 1302, 93 L. Ed. 1879, 1888 (1949).
It is contended that Indictment No. 301A-56 was "illegal, invalid, vague, uncertain and indefinite in that it charged the defendant with conflicting statutory crimes of murder." We consider this contention to be wholly without basis. Our court rules provide that it shall be sufficient in [25 NJ Page 522] every indictment for murder to charge that the defendant did willfully, feloniously and of his malice aforethought kill and murder the deceased. R.R. 3:4-3(b). The indictment in the instant matter used the precise phraseology set forth in the rules. In addition the State, in answer to a demand for particulars before trial, specifically advised the defendant that he was charged with willful, deliberate and premeditated murder. Thus there can be no question that the State fairly and fully discharged its obligation to notify the defendant of the nature of the offense charged against him. See State v. Rios, 17 N.J. 572, 603 (1955); State v. Borrell, 18 N.J. 16, 21 (1955); State v. Low, 18 N.J. 179, 185 (1955). The defendant complains that the indictment referred to both N.J.S. 2 A:113-1 and N.J.S. 2 A:113-2, but we fail to see how he could have been prejudiced by the statutory references. Cf. R.R. 3:4-3(a). N.J.S. 2 A:113-1, taken from R.S. 2:138-1, was part of the recent general revision of the statutes relating to civil and criminal justice. Although it contained minor alterations in punctuation and language, it did not seek to bring about any substantive changes and we are entirely satisfied that the meaning of N.J.S. 2 A:113-1 is identical with the meaning theretofore ascribed to R.S. 2:138-1. Cf. State by Richman v. Sperry & Hutchinson Co., 23 N.J. 38, 45 (1956). N.J.S. 2 A:113-1 provides, inter alia, that if any person in committing or in attempting to commit any unlawful act against the peace of the State, of which the probable consequences may be bloodshed, kills another, then such person so killing is guilty of murder. N.J.S. 2 A:113-2 provides for the degrees of murder and sets forth, inter alia, that willful, deliberate and premeditated killing is murder in the first degree. The indictment in the instant matter, in charging that the defendant Richard Larry Hunt willfully, feloniously and of his malice aforethought did kill and murder Helen Elizabeth Hunt, was legally sufficient to enable his conviction of murder in the first degree. See State v. Brown, 22 N.J. 405, 412 (1956); State v. Rios, supra; Brown v. State, 62 N.J.L. 666, 669 (E. & A.
1899); Graves v. State, 45 N.J.L. 347, 358 (E. & A. 1883). While the statutory references in the murder indictment may not have been essential (see R.R. 3:4-3(b)), they were not inappropriate and were not misleading or harmful; their presence furnished no ground for complaint by the defendant.
More troublesome questions which arose during the course of the trial must now be considered. After the defendant was apprehended in California he was returned by train to New Brunswick by Lieutenant Bates and Detective Spisso of the Middlesex County Prosecutor's office. The train trip began at 7:00 P.M. on August 13 and ended at 9:00 A.M. on August 16. During its course Bates and Spisso talked frequently with the defendant and Bates made written notebook entries. At the trial Bates and Spisso testified as to the information given to them by the defendant, including a crucial admission that he was struck by the baseball bat after rather than before the shooting. Spisso testified that he had not made any notes but had checked the notes made by Bates and had looked at them several days before testifying. Bates did not use his notes while he was on the witness stand but testified that he had read his notes during the preceding day and many times before that. He had arranged his information in an orderly and chronological fashion and on direct examination had testified to its substance. When the county prosecutor finished the direct examination of Bates, counsel for the defendant began his cross-examination by asking whether he could see the notes that were taken on the train. The county prosecutor objected with the comment that "if he wants to see the notes we can offer them in evidence." Defense counsel, ...