For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Francis, J.
The defendant Smith was convicted of murder in the first degree and was sentenced to death. The conviction was affirmed unanimously by this court in a comprehensive opinion which concluded with the observation:
"A reading of the record firmly and impressively convinces the impartial mind of the truth of the charge made against the defendant beyond a reasonable doubt." 27 N.J. 433, 466 (1958).
The execution was scheduled for the week of August 17, 1958. On August 8 defense counsel applied for a new trial primarily upon the ground of newly discovered evidence. After a hearing before the judge who had presided at the trial, the application was denied. This appeal attacks the legal propriety of the denial.
The original 31-page opinion of Justice Wachenfeld sets forth the circumstances of the homicide in detail. For purposes of perspective, however, repetition of certain of the facts which are pertinent to this proceeding seems necessary. [29 NJ Page 564] On March 4, 1957, at about 8:35 P.M., the decedent, Victoria Zielinski, 15 years of age, was walking along Wyckoff Avenue, Ramsey, New Jersey. She had visited a friend and was on her way home, more than half a mile away. The defendant Smith, who knew her casually, happened along in a borrowed car and undertook to drive her there. Instead of going directly to her home, he drove to an isolated sand pit in the neighborhood and parked. There, according to his confession, for no apparent reason the young lady said she was going to get out of the car and walk home. She said also that she intended to tell her father that he was "like the rest of the guys." He tried unsuccessfully to prevent her from getting out and when he tried to follow her, she began to yell and slap at him. He then swung at her "as hard as" he "could" with his right hand; "I don't know whether it was a fist or a slap or what." He did not know if he actually struck her. From that point on, things were vague in his mind, i.e., "that's where somebody pulled the switch." He next remembered getting back into the car alone. In the interval of vagueness he did not know whether he had struck at her more than once or whether he did so with an object other than his hand. He had a "feeling of running somewhere" or "chasing somebody." He thought he recollected "running in the sand with my shoe off." On getting back into the car, his right foot was cold; later he became aware that he had lost his shoe. When he left the sand pit, Victoria's school books and pocketbook were in the car. After proceeding a short distance, he thought he probably threw them into the woods. In accordance with information furnished by him, the police later located them there. On reaching home, he realized that his khaki trousers and socks were bloody. He changed the trousers, went back to the pit with a lantern, and retrieved his right shoe. Later the trousers, socks, and shoes were disposed of in the manner referred to in Justice Wachenfeld's opinion. 27 N.J. at pages 444-445.
At the trial Smith testified that he and Miss Zielinski quarreled while they were parked at the sand pit and he told her to get out of the car. She did so and started walking down the road. The events that allegedly occurred thereafter are recited in the earlier opinion as follows:
"A few moments thereafter, while he was preparing to leave the pit, defendant heard a commotion and saw two figures coming up the road. He quickly got out of the car and his 'bad' ankle, which had been struck by a bowling ball earlier in the day, collapsed under him, his right shoe coming off. Since the identities of the oncoming persons were unknown and it was a lonely spot, he seized the baseball bat from the back seat of the car for protection.
As the figures approached, he recognized them as Victoria and D.H. Victoria was bleeding from a cut over her ear. Smith asked D.H. what had happened, and the latter replied the girl had fallen on the road. Smith examined the wound and in the process got blood on his hands and trousers. Feeling she should be taken to a doctor, he placed her in the automobile, but D.H. grabbed her and forcibly pulled her out, telling Smith to leave her alone, that he, D.H., would take care of her. Victoria pleaded with Smith for succor, but since D.H. knew her much better than he, Smith decided he should not interfere further and drove off, leaving his shoe and the baseball bat behind." 27 N.J. at pages 446-447.
Smith's home was a short distance away. He drove there, washed up, changed his trousers, telephoned Joseph Gilroy, whose car he had been driving, and departed at about 9:10 P.M. to pick Gilroy up. On the way, he revisited the sand pit and retrieved his shoe.
Repetition of the above portion of the facts of the tragedy has been engaged in to point out the time element involved. On the basis of Smith's testimony at the trial, he picked up Miss Zielinski at about 8:35 P.M. (although at one point he said it was about 8:40 or 8:45 P.M., "it could have been later or could have been earlier."). He must have left Miss Zielinski and D.H. at the sand pit before 9 P.M., because after driving home, talking to his wife (who testified he arrived home shortly before 9 P.M.), washing up, changing his trousers and socks, attempting unsuccessfully to start a gasoline heater in the trailer where they lived, and making
his telephone call, he left home at about 9:10 P.M. to pick up Gilroy. Thus the import of his allegation at the trial was that D.H. appeared at the sand pit shortly before or around 9 P.M. And the conclusion which the defense sought to have the jury reach was that D.H. committed the murder.
But impressive evidence, accepted by the jury at the trial as credible, showed that D.H. was at work in the Wyckoff Pharmacy from 6 until shortly after 9 on the evening in question. According to the pharmacist, at about 8:35 or 8:40 P.M. he was sent in the employer's station wagon to pick up some merchandise at another drug store in Ridgewood, New Jersey, normally an 18- to 20-minute round trip, according to a police officer who timed it. D.H. returned to his employer's place of business at about 9 P.M., or shortly before, with the package he had been sent for and did not leave again until a short time after 9 P.M.
D.H. testified that on quitting work he drove his own car to Pelzer's Tavern in Mahwah, entering there at approximately 9:20. (On the way at about 9:05 or 9:10 he passed Myrna Zielinski, one of Victoria's sisters. Every one concedes this fact.) After a stay there of about 20 minutes, he left and went to Pellington's milk bar on Route 17 in Ramsey. He reached that place at about 10 P.M. Corroboration was furnished by witnesses who saw him at both places at the times indicated. Thereafter, he drove to his home, also in Ramsey, arriving there around 10:15 or 10:30. He was in bed at 11 P.M.
The new trial application consisted principally of an effort to discredit D.H.'s testimony at the trial that he had been in Pelzer's Tavern on the night of the killing and was home in bed at 11 P.M. that night.
Attached to the moving papers was an unsworn statement of Herbert Pelzer, owner of the tavern, dated July 3, 1958, in which he stated:
"That on the evening of March 4, 1957, I was operating my tavern in the normal pursuit of business. That on that particular night, March 4th, Charles Rockefeller known as 'Rocky' was in my establishment at 7:30 p.m. when his father came to pick him up and they both went out of my tavern. I did not see Charles Rockefeller again that night. Also, a man named [D.H.] was not in my place of business on March 4th at any time. However, on Tuesday, March 5th and thereafter, [D.H.] was constantly after me to say that he and Rockefeller were in my tavern from 9:30 p.m. and on during the evening of March 4th. The other men who were in my tavern that evening were Judge Young, Steve Wastog known as 'Lover,' Tony Mihok and they all know neither one of the men named, that is [D.H.] or Rockefeller, were in my place of business on the evening of March 4, 1957. * * *"
A second statement, attached and also unsworn, was signed by George W. Self, a United States Army private, who married Mary Faye Zielinski, sister of the decedent, subsequent to the homicide. The paper is dated May 30, 1957, and asserts that on the fatal night he was out with Mary. They returned to her home about 10:15 or 10:30 and learned of Victoria's absence. They went out to look for her and stopped at a place known as Robby's Corral to inquire if any one had seen her. Self went in and made inquiry of the owner and "one or two" other men who were there. Mary remained in the car. He was told that they had not seen her. While driving around town (he said) "[W]e saw [D.H.] two or three times, in the evening in his two-toned green Ford. One time in the heart of Ramsey and one time on Franklin Turnpike going toward Route 17." He said also that he saw H. "just a little before 10:00 p.m. as we were going to Mary's home the first time before we learned she was missing." Neither Self nor Mary Zielinski had been called as a witness at the trial.
At the hearing on the effort to obtain a new trial, Pelzer was called to testify. The procedure followed on his examination was most unusual. On direct examination, the signed statement mentioned above was shown to him. He conceded he signed it and that with one exception the contents were true. Then it was marked as an exhibit. This course was
improper. The witness was in court; the affidavit was hearsay. The best and primary evidence was his oral testimony. Whatever he had to offer in the way of alleged newly discovered evidence should have been introduced in the conventional manner. It would have been proper for the prosecutor to utilize the statement on cross-examination if the oral testimony deviated therefrom, and in appropriate circumstances it would have been permissible for the witness to use it to refresh his recollection. Of course, the method of handling the matter was not prejudicial to the defendant; it was advantageous to him. And in view of the seriousness of the case, we accept the record as presented.
After the statement had been introduced Pelzer (who had a criminal record for aiding and abetting bookmaking) testified that D.H. was not in his place of business between 7:30 P.M. on March 4, and 2 A.M. on March 5, 1957. He said also that Judge Young, Tony Mihok and Steve Wastog were present that evening.
On cross-examination it developed that about a week or ten days after the homicide he had given a voluntary statement to representatives of the prosecutor's office that D.H. was in the tavern on the night of March 4. Further, he admitted that before his statement was given to the State, an investigator for the defendant, one A. D. Nicol, had interviewed him. He told Nicol that D.H. was in his bar on March 4 from "9:30 on." Prior to the July 3, 1958 statement, he never informed Mr. Selser or Nichol that D.H. was not there that day.
On being asked why he told the prosecutor that D.H. was in the tavern, he said: "It came back to me" -- meaning "That's the statement I made to Mr. Nicol." At this juncture, the court repeated the question as to why he had so advised the prosecutor. He said: "I wasn't sure." He came to the conclusion that D.H. had not been in his tavern "a few months later," but this was after the trial was over. The record ...