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 Jacobs, J.
[32 NJ Page 172] The defendant William Butler was convicted of murder in the first degree and was sentenced to
death. He appeals to this court as of right under R.R. 1:2-1(c).
In July 1956 the Koppers Coke Company's office building in Port Reading, Middlesex County, was broken into, its safe was removed and opened, its office drawers and lockers were rifled, and its relief engineer, James Quackenbush, was brutally beaten to death. In January 1957, separate indictments were returned, charging that William Butler, Eugene Williams and his brother Bland Williams, James Winbush and John Coleman had willfully, feloniously and with malice aforethought, killed and murdered James Quackenbush, contrary to the provisions of N.J.S. 2 A:113-1 and N.J.S. 2 A:113-2. Winbush was never brought to trial; he was committed as insane and is confined at the State Hospital for the insane, at Trenton. Butler and the Williams brothers were brought to trial in March 1957 and Coleman (who is confined at Bordentown Reformatory on his plea of non vult) testified against them as a witness for the State. The trial resulted in a jury verdict of guilty of murder in the first degree and sentence of death. On appeal, this court reversed because of error by the trial judge and remanded the matter for new trial. See State v. Butler, 27 N.J. 560 (1958). Thereafter, Butler and the Williams brothers were brought to trial, but during this second trial the Williams brothers changed their pleas of not guilty to pleas of non vult which were accepted and were followed by the imposition of sentences of imprisonment upon them. A mistrial was declared as to Butler and he was later retried; the third trial was a lengthy one and at its conclusion the jury found Butler guilty of murder in the first degree and he was sentenced to death. His appeal rests on alleged legal errors which, he contends, now call for the reversal of the judgment of conviction entered against him.
The testimony at the third trial bearing on the State's murder charge against Butler followed the same general lines as that which was introduced during the first trial and which was set forth in great detail in the opinion by
Justice Francis. See 27 N.J., at pages 568-588. Coleman again testified, in effect, that during the early morning hours of July 20, 1956 he was coerced into accompanying Butler, Winbush and the Williams brothers in their criminal venture; that he and the others rode in a car driven by Bland Williams to a loading ramp at the Koppers Coke Company's premises; that they then all got out of the car, he and Winbush remaining at the car while Butler and the Williams brothers walked to the building; that Butler clipped the screen at the third window, raised the window (with the assistance of the Williams brothers) and entered the building through the window (followed by the Williams brothers); that he heard desk drawers slamming and papers rattling and heard Butler say "over here, over here is the safe"; that he also heard Butler say "You have to roll the safe. You have to roll it on a one, two, three, count" and then after hearing noise and a dog barking he heard "the night watchman" (he called him Mr. Crackenbush) cry out "Who's that? Who is that?"; that he then heard Butler tell the Williams brothers to "go out the back door" and saw the Williams brothers run into "Mr. Crackenbush" and start to punch him; that Butler then moved in on "Mr. Crackenbush" and "hit him on his left side with a club"; that he heard "Mr. Crackenbush" say "Stop, stop. You're hurting me" and he heard Butler reply "I mean to hurt you. You might recognize me. I mean to hurt you. I'm going to do you in"; that Butler continued to hit him until "he fell from all them blows"; and that "after Mr. Crackenbush was laying on the ground" Butler and the others went through his pockets.
Butler testified on his own behalf and denied Coleman's testimony or that he had any part in the robbery and killing and the Williams brothers, testifying on Butler's behalf, also denied Coleman's testimony or that they had any part in the robbery and killing. The State relied on the credibility of the crucial portion of Coleman's testimony relating to the killing and various witnesses were introduced by it to
furnish corroboration and by the defendant to furnish refutation. Victor Beatty testified that in August 1956, while he was confined to the Middlesex County Jail, he had a conversation with Butler during which Butler told him that "he was mixed up in some night-watchman murder," that "they got in through a window and got ten crummy dollars, or something to that effect" and that they "took care" of the watchman. Butler denied Beatty's testimony or that he had ever spoken to him. Detectives Houser and Panconi of the Woodbridge police force testified that on July 30, 1956 Butler and Coleman were housed in adjoining cells and that they overheard Coleman say to Butler "Why don't you tell the cops what you did? They are going to find out anyway" and that in response Butler told Coleman to keep his "mouth shut and don't tell them nothing, don't say anything to anybody."
Several witnesses were called by the State for the purpose of presenting evidence linking Butler with one of two electric razors which were taken from the premises of the Koppers Coke Company. Mrs. Marie Jaeger testified on direct examination that her husband Martin Jaeger had worked at Koppers in 1956 and until his death in 1957; that she had given him a yellow or cream colored electric Sunbeam razor for Christmas; and that her husband had kept it "in his office desk at the plant." On cross-examination she stated that she had never seen the razor at the plant and that her husband had taken it from his home "saying he was taking it to the office for use at the office." Mr. Romanetz testified that he had shared an office at Koppers with his late superior Martin Jaeger; that Mr. Jaeger had two electric razors which he always kept in his desk drawer and that to the best of his knowledge "he shaved with them every day"; and that the razors were missing on the morning of July 20, 1956 and have never been located. Mr. Granville testified that during the night of July 19-20, 1956 Butler came to his home and asked him to hold a package which, as he later discovered, contained
an electric razor. Confirmatory testimony was given by Mrs. Raspus who lived in the same house as did Granville and by Mrs. White, a daughter of Mrs. Raspus. Butler denied knowledge of the electric razor or that he had gone to Granville's home as testified by Granville. The State introduced expert testimony to indicate that the safe at Koppers had been subjected to an explosive, as Coleman had testified, and expert testimony indicating that soil specimens taken from the car which, according to Coleman's testimony, had been used by Butler in connection with the robbery, were similar in their characteristics to soil specimens taken from the area in which the safe was found. On the other hand, the defense introduced expert testimony to indicate that the safe had not been subjected to any explosive and that there was no similarity between the sweepings from the car and those taken from the area around the safe. See 27 N.J., at pages 581, 583. Further outlining of the conflicts in the testimony would serve no purpose here; there was sufficient testimony which, if believed by the jury, established that Butler had committed murder in the first degree as charged by the State. Two independent juries have unanimously expressed their belief in the testimony and have found the defendant guilty of murder in the first degree and we now properly address ourselves to the various legal points raised by the defendant in the order in which they have been presented in his brief on appeal.
In Point I of his brief the defendant contends that "the court below prejudicially erred in admitting incompetent, irrelevant and immaterial evidence for the State purporting to corroborate the testimony of the accomplice Coleman, it being uncertain, upon the record at bar, whether the verdict of guilty was based upon Coleman's testimony alone or its purported corroboration by other evidence, and the purported corroborative evidence being legally meager." The defendant acknowledges that a conviction may be had solely upon the testimony of an accomplice and cites State v. Spruill,
16 N.J. 73, 78 (1954), where this court pointed out that it is "settled law in New Jersey that a jury may convict a prisoner upon the testimony of an accomplice alone, if, in their judgment, it is entirely credible and worthy of belief." In the instant matter the trial court, in referring during the course of its charge to the testimony of Coleman, stated that "the degree of credibility to be given to the evidence of a participant or an accomplice is a matter exclusively within the province of the jury" and that the "law dictates that such testimony shall be viewed with caution and carefully scrutinized." Towards the close of its charge it expressly charged several requests which the defendant had submitted including the following:
"12. In considering the evidence of the witness Coleman, an alleged accomplice-witness, I caution you that you are to scrutinize his testimony with great care; to keep in mind the taint of criminality admitted by him and his connection with the crime charged against the accused, and after such scrutiny to weigh his evidence carefully in that light; to consider the extent to which his testimony has been corroborated by witnesses, and you are not to find the defendant guilty of the crime charged against him upon his testimony unless you find it to be entirely credible and worthy of belief and sufficient alone or as corroborated with other evidence to convince you of the guilt of the defendant beyond a reasonable doubt.
13. The corroboration of the testimony of the alleged accomplice-witness for which you as the jurors should look must be upon matters material to the guilt of the accused and his connection, if any, with the crime and not only to the mere facts that a crime had been committed."
The defendant now contends that the foregoing instructions modified the holding in State v. Spruill, supra and "required the jury, if it did not find Coleman's testimony entirely credible and worthy of belief, to look for corroboration, not merely as to whether the crime charged had been committed, but further, as to the defendant's connection, if any, with the crime." We find nothing of merit in this contention. Instruction No. 12 was designed to caution the members of the jury to scrutinize Coleman's testimony with great care and not to find Butler guilty on
Coleman's testimony unless (1) they found it entirely credible and worthy of belief, and (2) sufficient by itself or as corroborated by other evidence to convince them beyond a reasonable doubt of Butler's guilt. And Instruction No. 13 was designed to direct the members of the jury that they should look to see whether there was corroboration of Coleman's testimony as to the defendant's connection with the crime and not merely as to the commission of the crime. We are entirely satisfied that the instructions, which were granted at the request of the defendant's counsel, fully and fairly protected the interests of the defendant and he is in no just position to complain about them. See State v. Doro, 103 N.J.L. 88, 94 (E. & A. 1926); cf. Dennis v. United States, 341 U.S. 494, 500, 71 S. Ct. 857, 862, 95 L. Ed. 1137, 1148 (footnote 2) (1951), rehearing denied, 342 U.S. 842, 72 S. Ct. 20, 96 L. Ed. 636 (1951), motion denied 355 U.S. 936, 78 S. Ct. 409, 2 L. Ed. 2 d 419 (1958).
In subparagraph (a) of Point I of his brief, the defendant complains about the trial court's refusal to strike Mrs. Jaeger's testimony that her husband had kept her gift razor in his office at the plant. Her testimony was given in response to a question as to whether she knew where her husband kept the razor; at that point there was no objection or motion by counsel for the defendant but on cross-examination he brought out that Mrs. Jaeger had never actually seen the razor at the plant although her husband had taken it from his home with the comment that he was taking it to his office at the plant for use there. Defense counsel moved to strike Mrs. Jaeger's testimony "as to where the razor was on the ground that her knowledge is hearsay"; he did not move to strike Mrs. Jaeger's testimony that her husband had taken the razor from his home with the comment that he was taking it to the plant for use there. See 6 Wigmore, Evidence § 1725 (3 d ed. 1940); Annotation 113 A.L.R. 268, 288 (1938). The trial court denied the motion and we fail to see how its action prejudiced the
defendant or played any material part in the verdict. The jury could not have been misled as to the pertinent facts since it was told by Mrs. Jaeger that she had never seen the razor at the plant and that all she knew was that she had given it to her husband who had taken it from their home with the aforestated comment. If the trial court had granted the motion to strike the testimony that her husband had kept the razor at the plant, the information remaining in the jury's possession would have been no different. The jury could infer from Mrs. Jaeger's remaining testimony, when coupled with the testimony of Mr. Romanetz that Mr. Jaeger kept two electric razors in his office at the plant and shaved there daily, that the gift razor was kept by Mr. Jaeger at his office; and other testimony in the case, which was properly admitted and to which no objection has been urged, permitted the jury to infer that both razors were missing immediately after the robbery and that during the night of July 19-20, 1956 the defendant brought a brown bag containing an electric razor to the house in which Granville lived and that on the morning of July 20, 1956 Mrs. White saw, on top of the refrigerator in the house, a brown bag containing an electric razor of "a light cream color."
In subparagraph (b) of Point I, the defendant complains about the admission into evidence of testimony by Perth Amboy Police Captain Zanzalari that Coleman had identified a knife (Exhibit S-79) as that of Bland Williams. During his direct examination Coleman had testified, in effect, that he was coerced into accompanying Butler and the others and that at that time Bland Williams had pressed a knife into his back; he identified Exhibit S-79 as the knife and stated that after the night of the robbery and killing he had seen the knife on the Captain's desk at police headquarters in Perth Amboy and had picked it up saying: "This is the knife, here that red mark on it." "That is the knife he pulled on me." Bland Williams in his testimony for the defense acknowledged that Exhibit S-79 was just like his knife except that he did not recall the red spot on it.
Captain Zanzalari testified for the State that on August 28, 1956 Exhibit S-79 was on the top of his desk at his office at Perth Amboy and that at that time Coleman was brought in by Officer Panconi of Woodbridge and that as Coleman approached his desk Coleman said "That's Bland's fishing knife." No objection or motion addressed to this testimony by Captain Zanzalari was made by counsel for the defendant but he now seeks to urge that its admission constituted plain error within R.R. 1:5-1. We do not view it as such (cf. State v. Buffa, 51 N.J. Super. 218, 238 (App. Div. 1958), affirmed 31 N.J. 378, 380 (1960)) and, in any event, are satisfied that, in the light of the testimony by Coleman and Bland Williams, its admission could not be said to have affected the substantial rights of the defendant or to have played any material part in the jury's verdict.
In subparagraph (c) of Point I, the defendant urges that the trial court erred in admitting Detective Panconi's testimony that "the defendant refused to answer questions as to his whereabouts at the time of the murder." The detective testified that on July 30, 1956, he and other officers took the defendant, first to the Carteret Police Headquarters and then to the Woodbridge Headquarters where the defendant was booked "as a material witness." The defendant was questioned and according to the detective he "would not even speak with us or to us" -- "he wouldn't tell us a thing." At this point no objection to the testimony was made by counsel for the defendant. Continuing his testimony the detective stated that during his first interrogation of 10 or 15 minutes the defendant "didn't even speak to us" and that after being given lunch the defendant was again questioned at about 2:15 P.M. and again at 4:30 P.M. He was then asked whether on these two occasions the defendant answered any of his questions and ...