For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Alice Anderson was convicted of murder in the first degree and pursuant to the jury's recommendation was sentenced to life imprisonment. She appeals directly to us pursuant to R.R. 1:2-1(c).
The many issues raised require a substantial resume of the testimony.
In October 1959 Mrs. Anderson applied to Crown Finance Company, Inc., for a loan of $500. She had been married since 1940 to Ernest Anderson, Jr. The finance company granted the loan upon condition that her husband join with her in the execution of the application, the note and chattel mortgage, and also that he execute an assignment of his wages. The documents were handed to her for his signature. She returned them, purportedly so executed, but, it is admitted, the signatures were not Anderson's. Mrs. Anderson says she signed the papers with his authority. The documents plainly show the handwriting is not her normal script and hence a purpose to mislead the company is inescapable. In short, one could readily find either that she forged his signatures or that, if she had his authority, she nonetheless obtained moneys by the false pretense that the signatures were his.
For some time prior to the loan, Mrs. Anderson had an affair with John J. Cornwell, an ex-convict. Shortly after the loan, she and Cornwell journeyed to Alabama and obtained "one-day" divorces from their respective mates. The jury, incidentally, could find the $500 obtained from the finance company was paid over to Mrs. Cornwell in connection with the divorce. After returning to New Jersey, Mrs. Anderson and Cornwell took up residence as man and wife at the summer home leased from the Conahays in the Borough of Hopatcong. They had not married, although Mrs. Anderson testified they planned to do so and would have but for the homicide.
The victim, Charles P. Attard, became manager of the finance company's local office after the loan was granted.
The loan was in default. Quite obviously Anderson had disavowed the documents. Mrs. Anderson did not inform the company of her new abode. In December 1959 she applied to another finance company in the same town for a loan. Through existing channels, the manager of the second company learned of the Crown Finance loan and telephoned Attard, who quickly appeared and confronted Mrs. Anderson as she entered her automobile. She revealed her new address, agreed to make payments, and on December 17 did make a payment at the Crown Finance office. She made no further payment, apparently telephoning an explanation that she had injured herself.
On February 8, 1960 Attard went to the Hopatcong area to check on another account, and while there decided to call upon Mrs. Anderson. He telephoned her twice for travel directions which she gave.
Mrs. Anderson offered the defense that she killed Attard when he attempted to rape her. She testified that when she was at the Crown Finance office on December 17, Attard made advances which she physically repelled, and that thereafter he telephoned several times to invite her out for drinks. Attard was married and the father of a child. The defense continued that when Attard reached the Conahay home, Mrs. Anderson offered a modest payment, which he rejected saying that she was an honest woman, and that thereupon he resumed the theme that her favor would constitute payment of the debt. She said he seized her, that she broke away, obtained the gun and fired the fatal shot.
The gun was a Derringer with a capacity for two bullets of .22 calibre. It belonged to Mrs. Conahay, who left it in the house when she leased it to Cornwell and defendant. There was much evidence that prior to the day of the shooting the bullets had been removed from the weapon, from which the jury could infer that Mrs. Anderson loaded it, although this she denied. Indeed she insisted she thought the gun was empty. The evidence further showed the gun was kept in the kitchen. A finding that the gun was loaded
by defendant and carried from the kitchen to the room in which the shooting occurred was obviously critical with respect to her claim that she killed Attard in the course of an attempted rape.
The State contended the killing was the aftermath of the loan transaction. Mrs. Anderson admitted that Attard had accused her of forgery. The precise relationship between her involvement in the loan and the shooting, if the defense of rape be discounted as it was by the jury, is puzzling in the sense that the death of Attard could not have closed the book, but in these matters one cannot expect impeccable judgment.
The bullet entered below the right shoulder and took a downward course, from which one could find Attard was seated when he was shot. Large quantities of blood entered his lungs. He died, perhaps in about five minutes, of asphyxiation, loss of blood and shock.
The shooting occurred, according to Mrs. Anderson, in a room which, since a portion of the house was closed off to conserve fuel, served both as a bedroom and living room. She said she wanted to seek help but some women were chatting on the party line, and she abandoned her effort. Instead she turned to a plan of concealment. She waited for darkness. She dragged the body a considerable distance and with the aid of boards managed to "shoehorn" Attard into his automobile. She ejected the body in a remote area and abandoned the car near a tavern. She tried unsuccessfully to remove blood stains at the house. Although she denied knowledge, the fact is that a palpable effort was made to prevent identification of the body. Everything was removed from the clothing of Attard, except a quarter and a small emblem on the lapel of his coat. The gun, when found by the police, contained one live bullet. The spent shell was never found. The testimony shows the shell had to be removed manually. Mrs. Anderson said Attard had a card upon which he entered some notes. The card could not be found. When, early the following morning,
a police officer telephoned to inquire about Attard, Mrs. Anderson said he had left about 2:30 P.M. the day before. Cornwell testified that when he returned from work late that evening she made no mention of any incident and appeared to be her usual self.
Attard's body and car were found early on the 9th. When the police confronted her at the Conahay home that morning, Mrs. Anderson denied knowledge of the killing. Shown blood stains, she said she had cut her foot, and when an inspection showed no cut, she admitted the shooting. She signed a statement that day. In it she said Attard reached her home at about 4 P.M., told the story of his advances, and of his "proposition of December" that "I will mark it paid in full if you come across." It is significant that (1) she said Attard had removed his suit coat, a claim refuted by the fact that the garment was pierced by the bullet and was bloodied; (2) she told Attard she had no money whereas at the trial she said she did and had offered a payment -- a circumstance pertinent upon whether she would have given him the detailed directions to her home if no payment could have been made and she had in fact been manhandled by Attard in December; (3) she said she obtained the gun in the kitchen after fleeing from the bedroom, whereas at the trial she claimed the gun was in a dresser drawer in the bedroom, within easy reach; and (4) she said she made no effort to call for help, whereas at the trial she sought to mitigate the failure to seek aid for the wounded man or for herself by claiming the party line was busy.
Mrs. Anderson retained counsel. On February 18 her attorney presented the State with another statement in which she said she had not shot Attard, and indeed had not seen him that day; that she left the house at about 1 P.M. and spent the day at Dover with one Olivia Broxton; that she returned home at 10:15 P.M.; that Cornwell was already home, having returned earlier than usual; that at 3 A.M., Cornwell told her he had had a tussle with that "bastard
from the Finance Company" and "the gun went off"; that Cornwell made her tell the story she gave on February 9; that since then "I have reflected upon this and taken spiritual advice and have been advised to make a clean breast of everything"; that "my family has visited me and I have been visited by my attorney and my spiritual advisor all of whom have urged me to tell the absolute truth which I have done in this statement."
Asked by a police officer to square the new statement with her prior claim that Attard had sought to force himself upon her in December, she said no such thing had occurred and that she invented the story to buttress the rape theme which Cornwell had suggested. Confronted by Cornwell, she stayed with her new statement. But Cornwell had an air-tight alibi -- his presence at work was incontestable. At the trial Mrs. Anderson reverted to her first statement, with however significant contradictions, some of which we have already noted.
The defense sought to explain the false accusation against Cornwell by saying she had been "brainwashed" by everyone, including her attorney and the police, who could not believe that a woman who stood 5 feet 2 inches and weighed 112 pounds could have handled the body of Attard, a large man of about 200 pounds in weight. It is clear that the police doubted her story because of that circumstance and suspected she at least had help in disposing of the body. But the jury could readily find she was not at all "brainwashed" in the sense that she believed she was not the one who shot Attard. Indeed her own testimony never went to that length. The jury could find the effort to involve Cornwell was quite cunning, exploiting his criminal record and involving the expectation or hope that the woman she named would give false testimony to support the alibi. The reference to her spiritual advisor could also be deemed to be an astute effort to bolster a fabrication, to which circumstance we shall later refer again.
Defendant alleges a number of errors with respect to the admission and exclusion of evidence.
Defendant complains of testimony of her adultery, citing State v. Marchand, 31 N.J. 223 (1959). There the State gratuitously injected a suggestion of unchastity into an arson case. There was no connection whatever between the imputed conduct and the offense for which the defendant was on trial. In the circumstances of that case, that testimony, coupled with inadmissible proof of a prior fire, had the clear capacity to tilt the scales and hence we ordered a new trial.
Here, however, defendant's adultery was part of the fabric of the case. She and Cornwell lived as man and wife at the place of the homicide, and she sought to lay the crime at his feet. Defendant herself chose to accentuate the immorality of her affair with Cornwell by challenging her divorce from Anderson when the State offered him as a witness. Moreover, the question of motive revolved about the loan from the finance company. Defendant insisted Anderson had authorized her to pledge his credit. The State, on the other hand, contended she shot Attard because she feared criminal liability with respect to the loan, and hence the State sought to prove that prior to the loan defendant had parted with Anderson to take up with Cornwell, and had done so with Anderson's knowledge. Thus it was relevant that defendant and Cornwell had journeyed south together in the summer of 1959 and that Anderson had found them together at a motel prior to the loan transaction. As we said in State v. West, 29 N.J. 327, 335 (1959), where also a challenge was made to evidence admitted on the subject of motive:
"* * * That evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof. The unwholesome aspects, authored by defendant himself, if the evidence be believed, were inextricably entwined with the material facts."
The State did try to step out of bounds when it referred to a Mr. Sutton. In her direct testimony defendant mentioned Clarence Sutton. She was relating a conversation with Detective Skarzynski at the Conahay home on the morning after the shooting. She volunteered, "I remember Mr. Skarzynski saying to me, 'I know you.' And he made a reference to a man by the name of Mr. Sutton." The detective had already so testified on the State's case. On cross-examination she was reminded of her reference to Sutton, and asked if she knew him, to which she replied, "A very good friend, yes * * * I have known Clarence all my life." It was then brought out that she had lived in California for a while, which was followed with the question, "With Mr. Sutton?" Defense counsel objected and the trial court upheld the objection. The examination continued with respect to whether she was shocked by Skarzynski's mention of Sutton, to which she replied that it shocked the detective and not her, and added the detective "told me a story about Mr. Sutton." The prosecutor then asked:
"Q. You would rather forget about that particular name, wouldn't you?"
The trial court promptly sustained an objection saying, "That remark will be stricken and the jury is to disregard it." At that juncture the defendant interjected "Would you want me to tell you what Skarzynski said to me?" following which she yielded to her attorney's advice to answer questions and to volunteer nothing.
The evidence suggests no basis for the prosecutor's question. If the purpose was to prove an affair between defendant and Sutton, it was plainly improper. But the trial court ...