For affirmance -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.
Defendant, Leo Robert Forcella, was convicted of murder in the first degree without a recommendation. He appealed as a matter of right. R.R. 1:2-1(c).
On February 4, 1960, at approximately 9:15 P.M., defendant shot Marion Wetzel to death in the Hollywood Garden Tavern in Newark partly owned and operated by her. Forcella and Marion Wetzel had become romantically involved and at one time planned marriage. The events of February 4, which resulted in the tragic death of decedent began when defendant visited a bar in Hoboken partly owned by the deceased. He went to Hoboken to paint the bar, but finding a lack of adequate equipment, stayed only a short time and left with a Mr. Pasquale.
They drove to Newark in Pasquale's car in order to have the windshield of the car repaired and then returned to the tavern in Hoboken where defendant drank beer. Some time later defendant left and drove to the Hollywood Bar, arriving at about 6 P.M. He stayed for thirty or forty minutes during which time he had two small bottles of beer, each containing seven or eight ounces. He then drove home to Montclair where he lived with his daughters. He had supper and returned to the tavern at 8:15 or 8:30 P.M.
When defendant returned to the bar, he ordered drinks for Marion Wetzel, for himself and for a Lucille Cross, who was a friend and employee of the deceased. Marion Wetzel was tending bar at the time. He drank a small bottle of beer, ordered another, and then demanded to know where the deceased had been. She replied that they were not married and she did not have to tell him where she had been.
She then came out from behind the bar and went to a telephone booth. After a few minutes, she asked Forcella to speak to her mother on the telephone. The mother and defendant disagree as to the exact conversation between them, but agree that she asked him why he was arguing with Marion and told him that she did not want to see him. Thereafter, the telephone rang and Lucille Cross answered it and spoke to the mother.
The telephone rang again, Lucille Cross again answered it, and left the tavern by the front door to fetch a neighbor to the telephone. When she was returning to the tavern, she saw defendant leaning over the front seat of his car and reaching in the vicinity of the glove compartment. She re-entered the tavern and sat on a stool at the bar. Thereafter she saw in the mirror on the wall behind the bar defendant pointing a shotgun at Marion Wetzel who was then facing him. She heard a shot and saw the deceased fall. Lucille Cross then ran into a rest room and did not emerge until after the police had arrived.
Other witnesses saw Forcella inside the tavern with a gun in his hands before and after the shooting. After the shooting defendant ran into a telephone booth. When he came out, two of the witnesses grabbed him and were wrestling with him for the shotgun when the police arrived.
The police took the shotgun, examined it and found an expended shell in the right chamber and a fully loaded shell in the left chamber. They searched defendant and found an unexpended shell in his coat pocket. The two policemen, who rushed over toward defendant when they came into the tavern, testified that they heard defendant say that he had shot the deceased, that after they had taken defendant to the police station, defendant told them that he had been drinking for about three days, that he was a hot-tempered man and that he shot Marion Wetzel because she would not serve him any more drinks. Defendant also testified that prior to the shooting he had been drinking heavily, but on cross-examination defendant admitted he was sober at various times during the day. Several witnesses testified that he did not seem intoxicated.
At noon the next day, at Newark Police Headquarters, defendant made a statement which was admitted into evidence without objection. In it defendant related his family history, his background and the previous days' activities. He stated that he did not remember loading the gun or shooting Marion Wetzel. He did identify the gun and the shells as his. He explained that the gun was in his possession because he had intended to deliver it to his son.
Mrs. Anna Patron, the mother of the deceased, testified that about twenty-five minutes after the first telephone conversation with defendant (the one in which the deceased spoke first and then put defendant on the telephone), defendant called her and said that he was going to kill her daughter, that she then called the tavern and spoke to Lucille Cross and that some fifteen to twenty minutes later, ...