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.
The defendant Harold Parker was indicted by the Essex County Grand Jury for the murder of Preston Morrell. He was tried and convicted by a jury of murder in the first degree, with a recommendation of life imprisonment. He appeals here as of right, and seeks reversal of his conviction on the grounds that the trial court erred in denying his motion for a judgment of acquittal at the end of the State's case, and that the trial court erred in admitting certain improper evidence and in giving the jury certain improper instructions. He also charges that, in the aggregate, the court's errors deprived him of a fair trial.
The defendant admitted that he shot Preston Morrell in the morning of Saturday, July 12, 1958. He maintained, however, that the killing was in self-defense and therefore justified. At the trial, testimony as to the circumstances of
the shooting was given by seven witnesses for the State. The defendant testified in his own behalf. From the State's witnesses, the following picture appears.
At about 7:00 or 7:30 in the evening of July 11, the day before the shooting, Preston Morrell arrived at the apartment of Robert Liggon, a friend of his who also knew the defendant, at 608 Hunterdon Street in Newark. Morrell and Liggon then went to Morrell's house, had a few drinks of gin, and left at about 8:30 P.M. They then visited two bars, and left the latter at closing time, about 2:00 A.M. They met Angus Ellerbee, and then all three went to the apartment of Rosa Greene on Seymour Avenue in Newark.
The defendant also arrived at Rosa Greene's apartment at some time near when Morrell and Liggon appeared. It is unclear who was there first. In any event, the group at Rosa Greene's apartment after everyone arrived included the defendant, Morrell, Robert Liggon, Angus Ellerbee, a man called "Big Jack," Rosa Greene, her brother Brownie, and her sister Wilsie, a school teacher from South Carolina who was stopping at Rosa's apartment on her way to Boston.
Soon, Rosa Greene, Liggon, "Big Jack" and the defendant went into the kitchen of the apartment to play cards. Brownie went to bed; Ellerbee went to sleep on a couch in the living room, and Wilsie Greene and Morrell stayed in the living room, reading and talking. Morrell appeared to Miss Greene to be very "gentlemanlike."
At about 5:00 A.M., the defendant, having lost most of his money at cards, left the game and went into the living room. There, he and Wilsie Greene had a conversation. The defendant became argumentative, bragged about "his Cadillacs and diamonds," and began "low-grading the teaching profession." Miss Greene tried to avoid the conversation. The next thing she heard was the defendant calling Morrell a "nigger." A scuffle started, and Rosa Greene and Robert Liggon appeared from the kitchen and separated Morrell and the defendant. Rosa Greene testified she took the defendant into the hallway, and then allowed him to
return to the apartment on his assurance that there would be no more trouble. Later, another scuffle started. There was testimony that by this time both the defendant and Morrell acted intoxicated. There was also testimony that during this second scuffle, Morrell had something shiny in his hand, and that after the scuffle was over, the defendant was seen examining his stomach. Two Newark City detectives and a physician testified that shortly after the shooting, the defendant exhibited to them a few fresh small scratches on his body. There was also testimony that after the second scuffle Morrell said he had drawn blood from the defendant.
The defendant left Rosa Greene's apartment after the second scuffle. He was next seen by Elijah Powell at 604 Hunterdon Street at about 7:30 A.M. He was carrying a shotgun. Powell testified that he asked the defendant what he was going to do with the gun, and that the defendant replied, "Somebody is trying to cut me." Powell then advised the defendant to go home, and the defendant said, "Yes, Unk," or "O.K. Unk." Powell then said, "anybody who was carrying a gun around like that is looking to hurt somebody." The defendant replied "I don't want to hurt anyone, Unk," and then left. Powell went upstairs in his house, and later saw the defendant sitting in a car parked between 604 and 608 Hunterdon Street. Powell consulted his wife and then started to make a telephone call to his nephew "to come and pick [the defendant] up." Before Powell was able to complete the call, however, he heard a gun fire. His wife said "He must have shot him," and Powell looked out of the window and saw Morrell lying on the ground and the defendant near him.
In the meanwhile, the defendant had gone to the third floor of 608 Hunterdon Street, to the apartment shared by Robert Liggon and Lewis Brown. Only the latter was home. When Brown opened the apartment door to the defendant, he saw the shotgun lying in a corner just outside the door. The defendant asked if anyone else was home. Then, according to Brown's testimony, the defendant "* * * said
he had a little difficulty with somebody. * * * And if he found them he was going to hurt them." Brown replied "Look, I would go home." Without answering, the defendant then left, and Brown tried to return to sleep, but soon heard a shot and then police sirens, and so went downstairs to see what had happened.
Howard Brown also testified he saw the defendant before the shooting. He drove his car into the driveway between 604 and 608 Hunterdon Street, and saw the defendant talking with Elijah Powell. He did not speak with the defendant, and went immediately into 608 in order to collect rent from a first floor tenant. When he came out, some ten minutes later, he got into his car and started to back out onto the street. He did not see the defendant at this time. He heard Robert Liggon call from a car across the street, and so stopped and got out of his car and walked toward Liggon to speak to him. He was talking to Liggon and to Ellerbee and Morrell, who were also in the front seat of the car, when he discovered the defendant standing behind him, holding a shotgun. Liggon "jumped out of the car and told him to put the gun down, and started pushing him back." Morrell then jumped out of the car. As Brown left the scene, he saw the defendant "being pushed back or backing back." Liggon was in front of the defendant, and Morrell was following, with something shiny in his hand. Brown went back to his own car, and heard a shot. He saw Morrell lying in the street, and then left for work.
Robert Liggon testified that he, Morrell and Ellerbee left the Greene apartment at 7:30 A.M., about forty-five minutes after the defendant. Liggon left the apartment first in order to find out whether Parker was still around. He wanted to make sure "that there will be no more disturbments * * * between Morrell and Parker." They drove to Hunterdon Street in Ellerbee's car and when they reached 608, Ellerbee stopped his car on the opposite side of the street, when someone called to Liggon. He saw Howard Brown standing by the driveway at 608 and called to him.
Brown came across the street and he and Liggon stood at the side of the car discussing some work that Liggon wanted Brown to share with him. Next Liggon saw the defendant walking across the street toward him carrying a shotgun. At this point Liggon's testimony becomes unclear and much of it contradicts statements he had earlier given to the police, and the State was permitted to neutralize parts of it. The essential facts, however, can be gathered from what remains of Liggon's testimony. When he saw the defendant approaching the car, he told him "to go on and don't start any trouble and don't let there be no trouble." Morrell got out of the car and advanced toward the defendant. Liggon stood between them and tried to keep them apart. The defendant backed up about twenty to thirty feet, with Liggon in front of him and Morrell following with his hand in his pocket; Liggon kept the men apart with his outstretched arms. After a few minutes, Liggon gave up trying to keep peace and walked away past the defendant. He then heard a shot and turned around and saw Morrell lying on the ground.
A police officer, who arrived soon after the shooting, testified that he saw Morrell lying on the ground with a hole in his right shoulder and a small pair of scissors held loosely in his hand.
There was medical testimony that the cause of Morrell's death was a shotgun wound of the right chest, two and a half inches in diameter, which penetrated the right lung, with internal hemorrhaging into the right chest cavity. A ballistics expert testified that such a wound would be inflicted by the shotgun used by the defendant from a distance of seven to ten feet.
As part of the State's case, an unsigned statement made by the defendant was admitted into evidence by consent of counsel. In the statement the defendant related that, the night before the shooting, he left his home at 9:30 P.M., bought a half pint of gin, and visited three bars where he had several drinks. He then went to Rosa Greene's apartment.
The statement then narrates the events that occurred. In pertinent part it reads:
"We were playing stud poker (at Rosa Greene's apartment) until about daylight Saturday morning and I decided to stop playing as I was not winning any money and I got up from the table and I went into the front ...