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.
Defendant Ford Hipplewith seeks reversal of a first degree murder conviction with recommendation of life imprisonment on the grounds that remarks of the prosecutor in his opening and summation and instructions of the trial court were so improper and prejudicial as to warrant a finding of plain error.
Defendant admits that he stabbed and killed one Franklin Callis but contends that the killing was in self-defense and to prevent Callis from perpetrating a robbery. According to defendant's signed statement made to the police the day after the homicide and admitted in evidence without objection, the following occurred:
On May 11, 1959, the day before the killing, defendant attended the Rialto Theater in Newark. He fell asleep in the balcony, and when he awakened, found that $12 had been taken from his left trouser pocket. His plastic cigarette case and papers from his wallet were lying on the floor, and his wallet was lying on the back of his seat. He complained to the doorman and the theater maintenance man and was informed that they could do nothing for him.
On May 12, 1959 defendant arose at 8:00 A.M., drank a half pint of wine, and about 12:30 P.M. decided to attend the Rialto Theater, where the program had changed since the previous day. Before leaving the house, he took a butcher knife from the kitchen sink and put it in his belt under his jacket. His explanation for the taking of the knife was that it was on an "impulse." After entering the theater, defendant took a seat in the third row of the balcony on the
left side facing the screen, a different location from the one occupied the previous day. There were no other persons sitting in his row. He had 25 cent in his right trouser pocket, and a pack of cigarettes in a plastic cigarette case and his wallet in his left trouser pocket.
After watching one picture he dozed off. He felt "something annoying" near his left trouser pocket. He shifted his position and dozed off again. Shortly thereafter, he felt a hand inside his left trouser pocket and seized it about the wrist. He remembered he had a knife with him and took it out. Callis (owner of the intruder hand and subsequent deceased) pulled his hand away. The defendant told him, "You robbed me yesterday and you are not going to get away with it today." His statement continues:
"Then I started to get up and he started to move away from me and then I swung twice at him with the knife and I am not sure if I hit him with the knife at that time. Then he ran out from the seats where we were at and he ran into the lobby and when he ran I ran out behind him but I couldn't find him and then somebody said a man fell down on the other side of the lobby and then I walked over to where the man was laying and I saw that he was bleeding and then I told him to get up because he robbed me and he didn't answer and he didn't get up and then I turned around and I walked out of the movies and I put the knife in my belt * * *."
He was arrested while walking on a nearby street. At the police station he identified his plastic cigarette case, which he did not have on him when arrested.
Persons present in the theater testified for the State that they saw the defendant chasing Callis out of the balcony into the lobby. One witness heard a scream coming from the left side of the balcony, followed by a voice (later identified as defendant's) exclaiming: "I'll kill you, you son of a bitch." He testified that he saw the defendant chase Callis out of the balcony into the lobby, and that after Callis fell in the aisle leading back into the interior of the theater the defendant walked over to Callis, took hold of him while he
was lying face down, and dragged him a short distance exclaiming, "You son of a bitch. Come on. Do that again. Do that again. Come on, you son of a bitch. I kill you. I kill you."
Another witness testified that he heard a commotion in the third row of the balcony and someone said: "You , you done this to me before and got away with it but you are not getting away with it again."
Ernest Rumph, an usher, testified that he saw Callis emerge from the balcony holding his chest and run across the lobby into an aisle leading into the theater proper. He then saw the defendant coming into the lobby from the balcony with a knife in his hand. The latter asked him, "Where did he go?" Rumph asked, "Who?" Defendant replied, "You one of them?" The defendant then went to the entrance door and looked into the street. The defendant then heard someone mention that a man was lying in an aisle in the theater. He crossed the lobby and went into that aisle, took hold of Callis, who was lying face down and pulled him by the back of the coat for about two yards. Rumph further testified that "it seemed like he [defendant] was in the motion of stabbing him [Callis] * * *. Maybe about two times." Rumph did not at anytime see the defendant stab the deceased.
Fred Ruff, the theater maintenance man, corroborated the other witnesses as to the events occurring in the balcony. He added that the defendant held Callis' right arm and that while Callis was struggling to get away, the defendant appeared to be punching him. After the two ran out of the balcony the witness saw the defendant re-enter the lobby from outside, carrying a knife in his right hand. The defendant, after questioning Rumph, the usher, pointed the knife at Ruff, and asked him, "Are you one of them too?" Ruff told the defendant that the whole theater was in an uproar and to put the knife away and get out. The defendant then heard someone say that Callis was lying in the aisle bleeding, and ran across the lobby into the aisle. Ruff
further testified that a cigarette case and gray hat were found on the floor of the theater proper.
Robert Cantwell, a police officer who had participated in defendant's arrest, testified that at police headquarters he asked defendant why the cutting occurred. The defendant replied that "he was asleep in the theater, the Rialto Theater, and that he was awakened by what he thought was a hand in his left hand pocket. He said that when he woke up he stabbed at the person twice."
According to Dr. Edwin H. Albano, Chief Medical Examiner for Essex County, Callis' death was caused by a stab wound, 4 3/4" in depth on "the left side of the chest perforating the diaphragm producing massive hemothorax; that's hemorrhage in the left chest cavity and hemoperitoneum, internal bleeding in the abdominal cavity." The fatal wound was so located that the deceased "would have to be facing the assailant." There were four other superficial wounds: One on the right side of the chest; one on the middle finger of the left hand; one below the left side of the chin; and one in the back of the left shoulder. There was also a bruise on the left side of the forehead and two abrasions, one on the left knee and one below the right knee. Dr. Albano characterized the wound on decedent's middle finger of the left hand as a "defense cutting wound * * *. A wound that is sustained by an individual while trying to defend himself." He also testified that he found an open pen knife in the left lower pocket of Callis' jacket, and that the wound on Callis' middle finger of his left hand could have been sustained while putting his hand in the pocket containing the pen knife.
The defense relied primarily upon the testimony of defendant at the trial. Hipplewith repeated the circumstances of the theft on May 11, 1959. He testified that on the following morning, he arose at about 5:45 A.M. and went out to "shape up" for construction work. Since he was not selected for employment that day, he returned home, and lay on his bed listening to the radio and drank a half pint of
wine. At 8:00 A.M. he arose, performed household chores, and talked with his mother until about 12:30 P.M. He then decided to return to the Rialto Theater, where the program had changed since the previous day. Before leaving the house he took with him a knife for protection.
The defendant's theater seat was at the extreme right of a row, abutting a metal railing. The only free avenue of egress was to his left. There was no one sitting in the row when he took his seat. He watched one of the pictures through to its conclusion. When the next one came on, he became drowsy and started dozing. He felt a brushing sensation near his left hip, glanced around, saw nothing, shifted his position, and went back to sleep. Later, he felt something inside his left trouser pocket and upon reaching down discovered it was a hand. He became "scared" and grabbed the hand by the wrist. He started to rise from his seat and the intruder did likewise. The defendant testified that he saw the intruder reach into his own left hand pocket with his free left hand. This motion further frightened the defendant, who did not know what Callis might have in his pocket. Defendant released Callis' right hand. Callis did not try to leave the row but remained crouching beside defendant, and raised his right arm to a horizontal position. The defendant thought Callis intended to hurt him. While Callis' left hand was still in his jacket pocket, the defendant drew his knife and swung it twice at Callis. Callis pushed the defendant down into his seat and ran out the row and down the balcony steps. Defendant called after him, "You robbed me yesterday but you ain't going to get away with it today," and followed Callis.
The ensuing events are the same as those portrayed by the State except that the defendant testified that when he came upon the body of Callis lying face down in the passage-way leading into the theater proper, he reached down, turned Callis over, saw he was bleeding, made no effort to stab him again and left the theater. Later, ...