For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
Defendant Mark S. Holley was convicted of murder in the first degree and upon the recommendation of the jury was sentenced to life imprisonment. He appeals directly to this court as of right, R.R. 1:2-1(c), alleging as ground for reversal error in the admission of evidence at the trial.
It appears without dispute that on October 25, 1959, at about 10:30 A.M., at 50 Richmond Street, Newark, defendant shot and killed Samuel Baker. The State contended at the trial of the indictment arising therefrom that the killing was willful, deliberate and premeditated and so constituted murder in the first degree.
The State proved that in the early morning of October 25, 1959 Holley sold Baker a wrist watch for $2.00. Baker was a helper on the truck of the neighborhood ice dealer. Holley knew him casually and the sale arose through a chance meeting on the street. Very shortly thereafter, Baker discovered that the watch was not in working condition and he returned
to the site of the purchase where he looked unsuccessfully for the seller. A few hours later, just prior to 10:30 A.M., while engaged in his work on the ice truck Baker saw Holley in the vicinity of 50 Richmond Street where he (Holley) lived with his wife and seven children. Baker called to him and started toward him apparently to reclaim the purchase price and to return the watch. Holley ran to 50 Richmond Street and entered the building.
50 Richmond Street is a three-story apartment house. Upon entering the premises Holley went to the third floor where he lived, took a 12-gauge shotgun from under his bed, loaded it, went into the hallway and took a position at the top of the stairway. Baker, who had reached the second floor by that time, started up the stairs. He had mounted two steps when Holley (according to his statement to the police) pointed the shotgun and told him to go away. Baker allegedly said: "Come on down, I'm gonna kill you." Thereupon Holley fired the fatal shot.
The homicide took place at about 10:30 A.M. The police appeared on the scene in about 20 minutes and found the body at the foot of the stairway. A search located the gun and the expended shell. Pictures were taken of the deceased and the stairway and immediate area, both before and after the body was removed. Thereafter, until about 2 P.M., various police officers and detectives were at the scene investigating the matter. No weapon of any kind, other than the shotgun, was discovered on the stairway or landings, or in the hallway.
In the evening of the same day the police returned to the premises in response to a telephone call from Willie Frank Jordan, a relative by marriage of the decedent or his wife. On arrival, Jordan pointed out to them an ice pick on the third step of the stairway leading from the second to the third floor (according to the officers) or "right at the second floor landing" (according to Jordan). Jordan said that defendant's wife had pointed it out to him as they were descending the stairs and he then called the police. The pick was
taken to the police precinct. This was about 11 hours after the shooting.
The following day Holley gave the detectives a signed statement about the killing, which was admitted in evidence. It contains no assertion that decedent had an ice pick in his hand at the time of the shooting. These detectives were cross-examined vigorously as to whether defendant had not told them Baker was carrying an ice pick in his right hand when shot.
The State was aware from the post-event ice pick incident and from pretrial maneuvers that Holley would claim self-defense at the trial. And in fact, when defense counsel opened to the jury, he announced that he would prove that, after threatening Holley, Baker ...