On appeal from the Passaic County Court.
For reversal -- Chief Justice Weintraub, and Justices Burling, Francis, Proctor, Hall and Schettino. For affirmance -- None.
Defendant and her husband were indicted for murder. The trial court directed his acquittal. She was found guilty of manslaughter and sentenced to a term of nine to ten years.
We need consider but one reason urged for reversal. To demonstrate its significance, the setting should be described.
The deceased Ellen Graham, three years of age, was one of five Graham children entrusted by the State Board of Child Welfare to the defendants for care with compensation. The State contended the child died of a beating administered with intent to kill. The offense, if true, is manifestly detestable. The age of the infant, her placement in a foster home ostensibly to improve her lot, are themselves inciting circumstances. There was evidence the infant had been maltreated, her body bearing numerous bruises revealed by vivid pictures of her remains. Additionally, the pretrial publicity exceeded all decent bounds and interfered so palpably with the right to a fair trial that the event was postponed for some four months to protect defendant from prejudicial statements of alleged facts and rampant expressions of outrage. Despite the delay, jurors on voir dire recalled
the case although they gave sincere assurance of their capacity to be impartial.
The State's thesis was that the child died of a single blow to the head inflicted with a wooden paddle. It conceded the many bruises to which we referred above were unrelated to the death. Defendant admitted she inflicted some of the bruises in disciplining the child, but she was not on trial for atrocious assault and battery. Rather the charge was murder. Two factual issues sharply appeared and were crucial. The first was whether defendant struck the head of the child. The second was whether multiple subpial hemorrhages to which the State attributed death were in fact the result of the alleged blow.
The circumstances we have outlined were likely to inflame and to distract the jurors from the precise issues. It was therefore particularly incumbent upon the trial court to keep the proceedings on an even keel and to refrain from trespassing upon the fact-finding role of the jury. We are constrained to conclude that unwittingly the trial court did improperly intrude into that area.
The vitiating event occurred during an examination into the competency to testify of Albert Graham, age eight, a brother of the deceased. Upon his testimony hung the State's claim that defendant struck the head of the deceased. The boy testified defendant did so strike the child but there was evidence that before trial he denied that she had. Thus the boy's truthfulness was ultimately a vital issue beyond the preliminary question of his competency to testify at all. During the preliminary inquiry, the following occurred in the presence of the jury:
"The Court: I do not know of any child who will not tell the truth who has been indoctrinated by his superiors and especially the Sisters on the issue of sin, that it is wrong to commit a sin, that if you commit a sin you will be punished, and that he does not wish to be punished. He will not tell a lie because he will be punished. Furthermore, it would also be a sin.
Mr. Diamond: I understand that, sir, and I am aware of it fully. But the point ...