On appeal from the Passaic County Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
[26 NJ Page 47] Defendant appeals from a conviction of second-degree murder resulting in a State Prison sentence of 25 to 30 years.
On the early morning of February 24, 1955 the defendant shot his wife Antoinette while she was standing next to the driver's side of a parked car in front of a tavern at 145 Third Street, Passaic, New Jersey. He was seated behind the wheel of his own car, about 18 feet away, on the opposite side of the street. The bullet penetrated her upper right arm, shattering the bone, and proceeded through the right lung, striking one of the vertebrae and returning to the lung.
After the shooting the defendant picked up his wife and took her to the Passaic General Hospital. She died shortly after arrival. Following his arrest at the hospital, he co-operated fully with the police, obtained the gun used in the shooting from the back of his car, and made a voluntary statement in which he admitted raising the gun to "scare" his wife but maintained that its firing was purely accidental.
Antoinette Bucanis had been married once before and had left her then husband, who was in military service, to take up with another man. The parties involved here met in 1943. Antoinette at first did not disclose that she was already married, and in 1944 they began living together as husband and wife, resulting in a child being born. After Antoinette's husband had obtained a divorce in early 1947, John and she were married. Between 1947 and 1949 the defendant was confined to the New Jersey State Prison, and approximately a year after his imprisonment had begun his wife gave birth to another man's child which she put out for adoption.
When John was released he worked to support his wife and child, but her growing appetite for alcohol prevented the establishment of any normal relationship or home life. Two other children were born, making three in all.
Antoinette exhibited a woeful lack of care for her children, which added to the matrimonial discord and is stressed as relating to the unfortunate culmination of the marriage. We have no desire to catalogue exhaustively her extensive and sordid deficiencies as a mother. Several examples will suffice to reflect the dismal picture.
In December of 1954 the defendant left his wife with their small son to do some shopping, and while he was away the four-year-old boy was struck by an automobile as his mother sat in a tavern drinking with a male companion.
On Christmas Eve Antoinette Bucanis failed to come home and the defendant eventually found her in the apartment of this same drinking companion.
On four different occasions fires started in the Bucanis apartment while the children were alone and Antoinette was in a bar. The last of these occurred on January 9, 1955, when John was in the hospital. Two of the children were seriously burned and as a result Mrs. Bucanis was committed to the Passaic County Jail for 30 days on a charge of neglect.
The defendant was much interested in hunting and fishing, in which he indulged to a considerable extent, and his equipment for these purposes included a .22 calibre rifle. The fire described above destroyed the plastic trigger guard on this rifle, and defendant returned the gun to his automobile where it had customarily been kept.
On the evening of February 23, 1955 the defendant and his wife removed their youngest son from the hospital where he had been undergoing plastic surgery for his burns. Antoinette remained in a tavern while Bucanis took the boy to her sister's home. After about an hour, the defendant rejoined his wife and shortly thereafter she left. He eventually went looking for her and found her in another tavern. The two of them went home together.
Antoinette, however, objected to retiring, saying that it was too early, and a quarrel ensued during which the defendant slapped her and tried to prevent her from leaving by threatening to telephone her sister. Nevertheless, Mrs. Bucanis left the apartment. Defendant made some sandwiches for his lunch the next day, placed them in his car, and drove off in search of his wife.
He went to a tavern at 127 Third Street and parked nearby. He then went to Kupay's Tavern around the corner and double-parked next to an open space at the curb too
small to accommodate his car. Defendant saw his wife approach across the sidewalk to his right. She walked in front of him, between the parked cars, and continued diagonally across the street toward Kupay's Tavern. She stopped and became engaged in conversation with one Anna Macejka who was parked in front of the tavern. The defendant called to his wife and said either "If you don't come in this car, I will shoot you," or "If you go in that tavern, I will shoot you." She ignored him and continued talking to Mrs. Macejka. He reached back, took the .22 calibre rifle from the rear seat of his car and placed the muzzle in the open window beside him. He contends that as he did so the heel of his right hand near the base of his little finger, or the base of that finger itself, struck the unguarded trigger causing the rifle to accidentally discharge.
The State's case consisted of defendant's admissions plus the natural and logical inferences it insisted should be drawn from them. It produced Mrs. Macejka, who had witnessed the events immediately preceding the shot, and from the nature of the wound, the point of entrance, the short distance separating the victim and the defendant at the time the shot was fired, and from all of the other circumstances, including the pronouncement by the defendant that "If you don't come in this car, I will shoot you," the State contended the shooting was willful, deliberate and premeditated; that the defendant knew the gun was loaded; that he had aimed it at the victim and deliberately fired it with intent to take her life.
It is alleged there was reversible error in the admission of a photograph which is asserted to be cumulative, gruesome and inflammatory; in permitting the State to maintain that the course of the bullet was evidential of the defendant's intent; and in allowing improper utterances and remarks by the prosecutor which tended to prejudice the jury.
During the trial Dr. Surgent, the Passaic County Medical Examiner, testified as to the findings of an autopsy and identified photographs showing the entrance wound on the outer surface of ...