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 Proctor, J.
[31 NJ Page 493] The defendants Wayne Godfrey, Sylvester Johnson, and Stanley Cassidy were indicted by the Camden County grand jury for the murder of Edward Davis. Prior to the trial their motions for severance were denied. The State proceeded on the theory that the homicide was committed during an attempted robbery. The jury found the
defendants guilty of murder in the first degree without a recommendation of life imprisonment, and the court sentenced them to death. They appealed to this court as of right. N.J. Const. Art. VI, § V, par. 1(c); R.R. 1:2-1(c).
Shortly after 6:00 P.M. on Friday, January 24, 1958, Edward Davis, who owned and operated a toy store just off the northwest corner of Broadway and Ferry Avenue in Camden, came running out of his store bleeding profusely, calling for help, and exclaiming "I am shot." He collapsed to the sidewalk. The police were immediately notified, and, within a few minutes, rushed Davis to the hospital. About thirty-five minutes after entering the hospital, Davis died.
Subsequent medical examinations revealed that there were seven bullet holes on Davis' body, and the examiners concluded he had been shot four times. There were no powder burns. Two of the bullets passed through his face and a third lodged in his neck. The fourth bullet entered the left groin just below the belt, passed upward through the liver and right lung, emerging somewhat above the shoulder blade. Dr. Louis Reigert, who performed the autopsy, testified that death resulted from hemorrhage caused by the perforation of the liver and right lung.
At the trial Josephine Iwanuk testified that she lived on Jasper Street, just around the corner from Davis' store. Jasper Street meets Broadway and Ferry Avenue at a common intersection. A church is located in the angle formed by Jasper Street and Ferry Avenue, almost directly across Jasper Street from Miss Iwanuk's house. Around 6:00 P.M. on the date of Davis' death, while entering her car, Miss Iwanuk noticed "two colored boys on the opposite side of the street walking toward Broadway." She also noticed a two-tone car with three round vents in its front fender parked on the side of the street on which the boys were walking. She then drove down Jasper Street past the parked car. She could not further identify either the boys or the car.
Arthur Ognissanti, a motorist who had stopped his car for a red traffic signal at the intersection of Fourth Street
and Ferry Avenue at about 6:00 P.M. that day, testified that he noticed an automobile with two occupants swing around him, pass through the red light and turn into Ferry Avenue. (Ferry Avenue and Fourth Street intersect about one block from Davis' store and about a block and a half from Miss Iwanuk's house.) The automobile continued on Ferry Avenue, stopped momentarily, and started up again. Because of the traffic violation, Ognissanti noticed its license number, CE 4472. A day or so later, after hearing about "some excitement" in the neighborhood, Ognissanti gave the police this information. At the trial, he identified Godfrey's automobile from photographs as the car he had seen.
The police checked the license number and learned the automobile was registered in the name of the defendant Wayne Godfrey. They took Godfrey and a companion, Noah Hamilton, into custody on Tuesday afternoon, January 28, 1958. At that time Godfrey acknowledged ownership of the vehicle. At 4:00 o'clock the following morning, the defendant Cassidy was arrested, and the defendant Johnson was apprehended in Newark late that afternoon.
All three of the defendants confessed that on Friday, January 24, 1958, they attempted to rob Edward Davis' toy store, and that during the attempt, Johnson shot Davis. At the trial, the confessions were read into evidence. Since one of the issues raised on this appeal is whether the confessions were properly admitted, we will set them out in some detail. Cassidy gave three statements to Wilfred Dube, Chief of Detectives in the Camden County Prosecutor's office, and Godfrey gave two. In his initial statement, Cassidy said that around 6:00 P.M. on January 24 Johnson and Godfrey came to his home, and that they all took a ride in Godfrey's car, a 1956 or 1957 two-tone brown and cream-colored Buick. He was told "they were going to get some money." As they were driving past Davis' toy store, Cassidy was told "there is an old man, and all you have to do is grab him and take the money off him," and that "all I had to do was walk in first and Sylvester [Johnson] was to come in back of the
man and grab and take the money from him." Godfrey parked the car near a church on the first block past Ferry Avenue. Johnson and Cassidy walked to the toy store, inquired about some electric trains and looked at some toy trucks. They left and walked back to the corner where Johnson said that they should return to the store and that he would "grab" Davis. On their second visit, Cassidy walked toward the rear of the store, and Davis followed him. They had reached about the middle of the store when Cassidy heard Johnson, who was behind Davis, say "this is it," and hearing a shot he turned around and saw Davis reaching for Johnson. Three or four more shots followed. Cassidy said he was not armed and, until this point, he did not know that Johnson had a gun. He thought "it was just supposed to be a strong-arm job." Davis ran to the front of the store "and started to holler." Johnson ran by Cassidy and out the back door, and Cassidy followed him. Cassidy entered the car where Godfrey was waiting. They drove off and shortly thereafter picked up Johnson on Second Street or Ferry Avenue. Cassidy thought that Johnson had cut one of his hands, as it had blood on it. After leaving Godfrey's car and changing his clothes at home, Cassidy stopped at a bar, and soon thereafter picked up his girl friend and went to a night club in Philadelphia. Returning to Camden about midnight, they visited another bar before going home. On Saturday, the next day, Godfrey told Cassidy that Davis had died. Later in the day, Cassidy saw Noah Hamilton and told him about the holdup.
In his second statement, Cassidy somewhat altered his account of the crime and said that it was at his house, rather than in the car, that the decision to rob Davis' store was made. He also admitted, contrary to his prior statement, that during the holdup he carried in his pocket a .25 calibre black automatic which he had been "holding" for a friend, Robert Brinn, and which he returned to Brinn within two hours after the holdup.
In his third statement, Cassidy added to his prior statements. He said that on the night before the crime Godfrey had given him another gun "to hold," a nickel-plated .32 calibre revolver, which Cassidy identified as the murder weapon. He stated that he gave the revolver back to Godfrey just before the three men left his house to rob the toy store, but kept the .25 calibre automatic.
Godfrey, in his first statement, said that he owned a 1957 Buick Special automobile, which carried the license number noted by Ognissanti. On the afternoon of the holdup he went to Cassidy's house where he discussed a possible robbery with Johnson and Cassidy. The latter two said they needed some money, and each of them had a gun. Johnson's gun was a revolver, probably a ".32." Cassidy's was smaller; it was blue and looked like an automatic. Godfrey drove the other two men down Broadway, where they had decided to rob the toy store. Godfrey turned into Jasper Street, the first block beyond Ferry Avenue, and parked near a church. After Cassidy and Johnson left for the store, Godfrey saw a car parked on the opposite side of the street, and noticed that as the car started and passed him the occupant or occupants looked at him. After ten minutes, Cassidy and Johnson returned, and Johnson said that he had been looking at a toy truck and had put his fingerprints on it. Johnson and Cassidy again left for the store. About eight minutes later, Cassidy returned to the car and told Godfrey that Johnson had shot the proprietor. Godfrey and Cassidy drove to Fourth Street and turned into Ferry Avenue, where they saw Johnson. Godfrey stopped, and Johnson got into the car and told him what had happened. Johnson's hand was bleeding and had something wrapped around it. After dropping the other two men, Godfrey returned home. Later, after stopping at the Little Click bar, he visited Noah Hamilton at the latter's home and they returned to the bar. Around midnight, Godfrey and Hamilton left to meet Godfrey's wife at her place of employment. They picked her up and left her at a party. They then
returned to the Little Click, where they drank until 2:00 A.M. After taking Hamilton home, Godfrey returned to his own house. During the evening he told Hamilton the details of the robbery.
The following day, Saturday, at Johnson's request, Godfrey drove to Newark with Cassidy, Johnson and Hamilton. They stopped at Godfrey's aunt's house and drank for a while. Later Godfrey drove Johnson to another house in the vicinity, and left him there and returned to his aunt's house, where he rejoined Cassidy and Hamilton.
In his second statement, Godfrey somewhat changed his earlier version and admitted he had borrowed the .32 calibre revolver used by Johnson from James Walker on the day before the crime. He said he told Walker he needed the gun for protection and "would give it back to him tomorrow [Friday]." Godfrey gave the weapon and five shells to Cassidy, who kept them overnight. The following day Cassidy asked Johnson whether he would like to carry the .25 or the .32. Johnson chose "the nickel-plated one, the .32." After the holdup, Godfrey returned the .32, now empty of bullets, to Walker that same evening. He also gave Walker five .32 calibre bullets to replace those which had been spent. He had seven or eight boxes of such ammunition in his house.
Johnson was apprehended at his uncle's house in Newark late in the afternoon of Wednesday, January 29, 1958. He was returned to Camden and made his statement to Chief Dube early the following morning. He said that late in the afternoon of the day of the crime the three men talked at Cassidy's house about their need for money, and the discussion turned to the prospect of robbing some one. At Godfrey's suggestion, they decided to rob a toy store on Broadway near Ferry Avenue, as only one man operated it. Godfrey was to drive, and Cassidy and Johnson were to enter the shop. Godfrey gave Johnson a .32 calibre nickel-plated revolver; Cassidy was also armed.
Godfrey drove past the toy store and parked the car near a church off Broadway on the first street beyond Ferry
Avenue. Johnson and Cassidy walked to the store and entered by the front door. After asking the proprietor to show them some toys, Johnson picked up a toy truck, a model of a cement mixer. He realized he had touched the truck, and he and Cassidy left and returned to Godfrey's car. There, they decided to "rob the place and take the truck with us" and "hold the man up." Johnson and Cassidy went back to the store. Cassidy was asking the proprietor about the toy truck in the rear of the store, when Johnson "pulled out the revolver and told him it was a stickup." Davis grabbed for Johnson, "tussled," and "the gun went off, and when the gun went off I didn't know what happened, I was scared, and I was just shooting." He did not recall how many shots he fired, or whether he hit the man. He said, "I was trying to scare him." He ran out the back door and down Ferry Avenue about a block and a half, when Godfrey and Cassidy drove by and picked him up. Either during the struggle with Davis or in his rush to escape, Johnson cut the middle finger of his left hand. After leaving Godfrey's car he went to his sister's house, where he remained until the next day.
On Saturday, the following day, Johnson met Godfrey, Cassidy and Noah Hamilton and persuaded them to drive to Newark. His reason for visiting Newark was to get a job and to get away from Camden for a while. After they reached Newark, they stopped at Godfrey's aunt's house and later Godfrey drove Johnson to the house of the latter's uncle. He stayed there until apprehended by the police.
In addition to the confessions and the proofs of Davis' death and its cause, the State also introduced the following evidence:
The .32 calibre revolver identified by the defendants in their confessions was established to be the murder weapon. August Hoppe, in charge of the State Police Firearms Identification Laboratory, was called to give the results of the tests confirming that fact. But before he gave such testimony, it was stipulated that ...