For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
The appellant Thomas Knight together with George Artis and Nathaniel Roberts was convicted of murder in the first degree with a recommendation of life imprisonment. This appeal concerns the denial by the trial court of Knight's motion for a new trial.
At the trial which resulted in their convictions, it was proved that Artis, Roberts and Knight robbed a tavern at about 2:00 A.M. on July 26, 1959, and while in the process Artis shot and killed one of the patrons. It was clearly established that Knight and Roberts actively participated in the robbery; Knight brandished a knife and Roberts rifled the tavern's cash box. There was also testimony Knight took money from the patrons. After the murder the three fled in an automobile which Knight had admittedly stolen.
In his statement given to the police after he was apprehended, Knight said he met Artis and Roberts and "They said, 'Hey, you got a car' they said, 'we're going to do a little job.'" Then Knight stole an automobile, picked up
Artis and Roberts and drove to the tavern. Knight admitted following Artis into the tavern, but denied knowing Artis had a gun. He "got scared" when he saw Artis holding the gun. He said that after the shooting he left the tavern alone and returned to the automobile. Artis and Roberts followed shortly behind and the three drove away.
Although Artis and Roberts had given the police statements which were introduced at the trial to implicate them, they did not take the stand. However, Knight testified in his own behalf after the statement he had given to the police was put in evidence. He admitted stealing the car "because Roberts told him he had a little job he wanted to do," but denied knowing what Roberts meant by "a job." He stated that when he entered the tavern he expected to "socialize" with Artis and Roberts and that he first became aware of the planned robbery when he saw Artis wielding a gun. He denied any voluntary participation in the robbery but said he drew his "shank" (knife) after Artis or Roberts told him to, and acted as a participant because he feared Artis might use the gun on him. He also testified that after the robbery he received none of the money and that he was told by Roberts "that if I go to the police that I'll be done up."
The jury returned its verdict on February 19, 1960. None of the defendants appealed. On December 28, 1960, more than ten months after the verdict, Knight made a motion before Judge Barger, who had presided at the trial, for a new trial based on the following grounds: (a) newly discovered evidence; (b) his admissions to the police were improperly received in evidence as a "confession"; and (c) he was entitled to a severance prior to the trial.
The "newly discovered evidence" consisted of affidavits of Roberts and Artis made on December 28, 1960. They stated "Knight had no knowledge of this crime, and did not participate in any way of his own free will, and did not receive any money taken in the robbery"; that Artis and Roberts planned the holdup; that Roberts asked Knight
to get a car without informing him of the purpose; that Knight supplied the transportation but never knew of the intended robbery until he was forced at gun point by Artis in the tavern to become a participant. By supplemental affidavits Artis and Roberts stated they would voluntarily testify to the facts contained in their original affidavits.
At the hearing on Knight's motion, the court held two of the grounds, i.e., (1) Knight's admissions were improperly received in evidence as a "confession" and (2) he was entitled to a severance, could not properly be argued because they were raised long after the expiration of the period set forth in the rules governing the time for appeal and the time in which a motion for a new trial based on such grounds may be made. 1:3-1(a), 3:7-11(a), 1:27B(c) and (d). Nevertheless the court considered the merits of these grounds and held them to be without substance. On the question of "newly discovered evidence," the court, after considering the affidavits and the record of the trial, found the affidavits were unbelievable and held Knight had not shown "sufficient cause for the Court to grant further relief for the taking of oral proofs." It therefore denied the motion. This appeal is from that order. R.R. 1:2-1(c).
A motion for a new trial is addressed to the sound discretion of the trial court, and its determination will not be reversed on appeal unless there has been a clear abuse of that discretion. State v. Smith, 29 N.J. 561, 573 (1959). To entitle a party to a new trial on the ground of newly discovered evidence, the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the original trial and not discoverable by reasonable diligence prior thereto; and (3) of the sort which would probably change the jury's verdict if a new trial was granted. State v. Johnson, 34 N.J. 212, 222 (1961); State v. ...