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 Haneman, J.
The Grand Jury of Hudson County indicted defendant, charging that on November 11, 1960 he "did wilfully, feloniously and of his malice aforethought kill and murder Arlene McCrystal." The matter having been tried and the jury having found defendant guilty in the first degree with a recommendation of a sentence of life imprisonment, he appeals to this court as a matter of right from the judgment entered on the verdict. R.R. 1:2-1(c).
The facts developed at the trial concerning the fatal incident are mostly undisputed. The evidence established that defendant was married in 1945 and had three children. Some time in 1952 he left his wife and family and commenced living with another woman, by whom he had a child, without the sanction of marriage. In March 1960 defendant was employed as a bartender at the Musical Bar in Union City. This saloon was located within a city block of a tavern known as the Sawdust Trail Tavern, to which reference will be hereafter made. One of the regular customers at the Musical Bar at that time was Arlene McCrystal, known by the nickname of Mickey. She was
the mother of three children but was living apart from them and her husband. Defendant commenced keeping company with her shortly after their initial meeting in March 1960. They spent their time in nightly drinking at various taverns. In the latter part of April 1960 defendant and Mickey rented an apartment in West New York under the names of "Mr. and Mrs. King" and cohabited as husband and wife until the homicide which occurred on November 11, 1960. Their association was not always peaceful. They engaged in a number of arguments during which Mickey threatened to terminate their relationship. On one of these occasions, in September 1960, defendant became embroiled in a bar with several men who prevented him from hitting Mickey. He later that day confided to a friend that he was seeking a gun "to shoot her."
On November 11, 1960 defendant and Mickey left their apartment at about 10:30 in the forenoon. They took a bus in Union City and separated, agreeing to meet at some indefinite time at the C.C. Bar in Union City. Upon his arrival in Union City defendant went to the C.C. Bar where he commenced imbibing. He shortly left the C.C. Bar but continued to drink at a number of taverns, returning there periodically to "see if she [Mickey] was around." On one of these occasions he was handed a letter from Mickey by the bartender, in which she stated that it was "better we split up."
In the light of their previous arguments, defendant was not, apparently, impressed with the finality of Mickey's decision. He proceeded to the home of a mutual female friend seeking Mickey. Not finding her, he continued drinking in various taverns, finally arriving at the Sawdust Trail Tavern at about 10:00 P.M. He testified that he then "felt good," had "a woozy feeling" from "drinking all day" and "felt melancholy, blue." He had no recollection of having eaten the entire day.
During defendant's peregrinations Mickey commenced a similar tour at 2:00 P.M. in the company of a girl friend.
They embarked upon their trip at Otto's Bar, Hoboken, where they met two other girls. Three of the girls were drinking. The fourth, Barbara Lee Finn, 19 years of age, testified that she did not drink because she was bothered by an abscessed tooth. Having visited a number of taverns, the four finally arrived at the Sawdust Trail Tavern about 10:00 or 10:30 P.M. King was then sitting near the end of the bar not far from the ladies room. The girls selected stools at the bar in close proximity to defendant, Mickey sitting some three or four stools away from him. None of the witnesses, with the exception of Finn, could testify to the nature of the conversations between the accused and the victim. Finn, however, was quite specific as to the exact statements. She testified that Mickey "cursed" him, and quoted some foul and obscene appellations which Mickey uttered, connoting that defendant was a sexual pervert. On one occasion, stated Finn, Mickey arose from her stool and "pushed against" defendant on her way to the ladies room, continuing with her vituperative comments. After Mickey went to the lavatory, King said to Finn, "What's wrong with Mickey? What am I going to do with her -- Mickey? I love her and she knows it." King said that "he couldn't take it any more, that she was embarrassing him; she had embarrassed him in almost every bar in Union City." King got up, left the tavern for ten to twenty minutes. Upon his return, he first went to the men's lavatory, then walked over to Mickey, who was seated at the bar, and asked her, "Are you coming with me?" He repeated this request two or three times. In answering, Mickey said "something like, 'I had better not be pregnant' -- that she didn't want another bastard walking around." King replied, "You don't mean that, you don't mean that, Mickey, do you?" At this point Finn, noting that King had something in his overcoat pocket, and sensing danger, told Mickey to "Go into the ladies room. I'll talk to Eddie."
Mickey entered the women's lavatory with one of her friends, Patricia Dorn, who held on to the doorknob in order
to keep the door closed. Defendant, however, pulled open the door which Mickey was facing. In response to defendant's suggestion that she leave with him, Mickey refused. Defendant then pulled a revolver from his waistband and fired five shots at Mickey, who tried to hide in the four by eight foot ladies room. Finn rushed to the lavatory, pushing defendant's arm. He paused, swayed and fired a sixth shot. Defendant then walked out of the tavern with the gun held at chest level. Four of the six bullets entered Mickey's body. Mickey died the same night. The murder weapon and a box of cartridges were found the morning of November 12 in the rear of the Musical Bar. Although tested, no legible fingerprints were discernible.
King testified that he did not have a revolver in his possession on his first visit to the Sawdust Trail Tavern; had never seen the murder weapon before it was shown to him at the trial; had never before used a gun; vaguely remembered leaving the Sawdust Trail Tavern at about 10:15 P.M., and had no recollection of returning to the tavern or of having shot Mickey. He described the incidents which occurred at the Sawdust Trail Tavern from the time of his first arrival to his first departure with clarity and in considerable detail, including conversations had before the advent of Mickey at the bar. He professed not to remember the exact "curse" words used by her at that time. His first recollection, after his initial departure from the saloon, he testified, was that he found himself at 1:00 or 1:30 A.M. walking the streets in Hoboken. In answer to a telephone call which he then made to the C.C. Bar requesting that someone with a car pick him up, he was advised that Mickey had been shot or that he had shot her. Thereupon he took a bus to New York City and walked the streets for several hours. Finally, he took a bus to Newark and telephoned his mother at Lake Parsippany, requesting that she meet him at Morristown. He proceeded by bus to Morristown, where he met his mother in a public restaurant. They agreed during the conference there that
he should surrender himself to the police. The mother having telephoned an attorney at 1:00 P.M. on November 12 requesting that he make the necessary arrangements, King, accompanied by his attorney, surrendered himself to the police at 9:00 A.M. November 13.
Defendant advanced five grounds for the reversal of his conviction:
(1) The trial court failed to instruct the jury that decedent's behavior toward defendant prior to the homicide, superimposed upon the accused's alcoholic condition, might be found to have affected his mental powers to such an extent that he did not in fact premeditate or deliberate, thus serving to hold the offense to second degree murder.
(2) The trial court charged the jury that insulting language or conduct alone could not constitute sufficient provocation to reduce a homicide from murder to manslaughter and thereby, in effect, instructed the jury that the evidence could not support a verdict of manslaughter.
(3) The trial court included an instruction on flight which was unwarranted by the evidence, and improper.
(4) The State cross-examined the witness Finn in an improper and prejudicial manner.
(5) The trial court refused to compel the State to product a written statement of the witness Finn for defense counsel's inspection at the trial.
We shall proceed to consider defendant's arguments in the order above set forth.
At the outset we conceive it appropriate to discuss the employment of the word "mitigate" when describing the effect, upon the degree of murder, of the "prostration" of the mental faculties of a defendant who is being tried for the commission of a premeditated, deliberate and willful homicide.
In this discussion the terms "proof," "burden of proof," "burden of persuasion," and "burden of producing evidence"
will be used in the sense attributed to them by The Evidence Act, 1960. ...