On appeal from the Essex County Court.
For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis and Proctor. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Weintraub, C.J.
Defendant was convicted of murder in the second degree and sentenced to serve 15 to 20 years. He appeals directly to this court pursuant to Article VI, § V, paragraph 1(c) of the Constitution and R.R. 1:2-1(c).
The principal question is whether the trial court properly charged the ingredients of the crime in the light of defendant's version of the crucial events. The State's evidence conflicted with defendant's account, but for the purpose of the issue presented to us, we must accept the facts most favorable to him.
On March 15, 1957 defendant was graduated from the Newark Police Academy. That evening church services were held at his home, and at about 10:30 P.M. he and some friends left to celebrate. Defendant admitted consuming six whiskeys with beer as "chasers" some hours prior to the shooting. He, however, was found by the police surgeon not to be under the influence of intoxicating liquor at 3:45 A.M., about 1 hour and 20 minutes after the fatal event.
Defendant and his party entered the Peanut Bar a bit short of 2 A.M. While there he saw the deceased, Salvador Touza, approach a woman at the bar and heard her say "Get the hell away from me" as she pushed him. Defendant interpreted this event to suggest solicitation by the
deceased (the State's testimony indicates he merely sought to strike up a conversation which failed without unpleasantness). Defendant did not interrogate the woman, but rather, to avoid a scene, approached the deceased after he left the premises. His purpose was not to arrest, but rather to question and warn against such conduct.
Defendant informed deceased he was a policeman and exhibited his badge. Following inquiry and cautionary remarks concerning soliciting, defendant asked deceased for identification, conceiving the circumstances called for that inquiry. After evasive disclaimers of ability to speak English, deceased suddenly slammed defendant against a railroad retaining wall, causing a laceration and bruising of defendant's hand. At this point we note the conceded fact that deceased had jumped ship in December 1955, was illegally in this country, and hence subject to prosecution and deportation. Defendant was unaware of this at the time, but refers to it in support of his description of deceased's conduct. It is pertinent to add, also, that the autopsy disclosed that at the time of these events deceased was in a stage of intoxication in which an individual would likely be belligerent and irrational in behavior.
The alleged attack upon defendant clearly was a disorderly persons offense for which defendant was empowered to arrest, and defendant did then, for the first time, determine to take deceased into custody. For brief moments, the men were locked in a struggle. Deceased, well-developed, stood 5 feet 4 inches and weighed 200 pounds. Defendant stood 5 feet 10 inches and weighed 172. Defendant was able to reach only his gun (he was armed in compliance with police regulation notwithstanding he was "off duty"), and he struck deceased several blows with the weapon in an effort to subdue him. Deceased broke away, with defendant in pursuit. Deceased ignored a command to halt, and at a considerable distance, defendant fired two warning shots and then two more at the legs, with no expectation of being effective but hoping that a near-miss would induce deceased to stop.
At a point, defendant took another street hoping to cut off the deceased. They met on Bruen Street. Despite orders to raise his hands and get up against a wall, deceased came menacingly toward defendant. In close quarters, defendant fired twice at the legs, with intent to disable but not to kill. The State's expert testified that the shots were fired 14 inches from one thigh and one inch from the other, the point of entrance of both bullets being in the front. The medical examiner testified the wounds ordinarily would not be fatal, but the femoral artery in the left thigh was severed, resulting in death from loss of blood and shock.
In short, defendant testified that all times he acted as a policeman in discharge of his duty as he understood it. On the other hand, the State's thesis was that defendant, a "rookie" officer who had imbibed, was "trigger-happy," exceeded his lawful authority in using the weapon, and indeed fired with intent to kill. There was evidence that, far from offering resistance, deceased was pleading for his life when defendant shot him. We repeat that it is not our proper province to make a factual finding in disposing of the question presently involved; and since we have no way of knowing what evidence the jury believed, we must accept the testimony favorable to defendant for the purpose of testing the correctness of the instructions given to the jury.
The trial court charged the jury could return a verdict of murder in the first degree, or in the second degree, or manslaughter, or acquittal. In outline form, the court:
(1) Stated the basic positions of the State and defense in general terms, in the course of which appears:
"On the other hand, the defendant denied the commission of an unlawful act, contending that as a policeman he was justified in his actions and, secondly, that he is excused because he acted in self-defense. In either of such events there would be no unlawful homicide and so the case would end there * * *."
(2) Charged that "if you should come to the conclusion that the defendant committed unlawful homicide, that
homicide in our law would be presumed to be murder in the second degree."
(3) Then defined murder, saying in part:
"So, too, the crime would be no greater than murder in the second degree if you should find that the intent of the defendant was not to kill, but rather to inflict great bodily harm upon the decedent." ( Emphasis added)
(4) Then discussed manslaughter:
"If you should find that the defendant is guilty of an unlawful homicide but that his intent was to do less than great bodily harm to the decedent, then the only crime of which he may be found guilty is manslaughter. Again, if you should find that the defendant committed an unlawful homicide and that his intent was to do great bodily harm, or even to kill, but that he acted under provocation, then the degree of the crime would be mitigated from murder in the second degree to manslaughter." ( Emphasis added)
(5) Defined a policeman's right to use force, in the course of which appears:
"But a different norm has been developed for the governance of an officer who would arrest one whom he suspects of having broken one of the laws found in the categories of lesser offenses to which I have referred. Here the abhorrence of our law to the taking of human life becomes the paramount consideration, and the police officer must conform to a different code of action in meeting the several possible exigencies which may face him in making an arrest and it is this code of action which is applicable to this case, since there is no evidence that the decedent was suspected of being a felon.
"Where such an offender -- and I am speaking now of the perpetrator of a lesser offense -- where such an offender is fleeing to avoid arrest, the officer is not justified in killing him, though that be the only feasible means of interrupting the flight. And this principle ...