The opinion of the court was delivered by: LANE
Petitioner is presently confined in the New Jersey State Prison at Trenton, New Jersey, owing to his conviction of first degree murder in the Essex County Court on April 8, 1960. On January 10, 1961, the Supreme Court of New Jersey affirmed Mark S. Holley's conviction. State v. Holley, 34 N.J. 9, 166 A.2d 758 (1961). Certiorari to the Supreme Court of the United States was applied for and denied. 368 U.S. 854, 82 S. Ct. 89, 7 L. Ed. 2d 51 (1961). Petition has now brought before this court an application for a writ of habeas corpus.
Samuel Baker was shot and killed at 50 Richmond Street, Newark, New Jersey, about 10:30 a.m., on October 25, 1959. His death occurred on the steps leading to the third floor of a three-story apartment house. Approximately twenty minutes after the homicide the police arrived. They thereupon conducted a thorough search of the premises. The only weapon found was a shotgun. The police returned later that evening, however, because of a phone call from Willie Frank Jordan, a relative of the decedent. Jordan showed them an ice pick on the steps leading to the third floor. Holley's wife, according to Jordan, had spotted the ice pick when she and Jordan were walking down the stairs. Jordan stated that upon seeing the pick, he had called the police.
One of petitioner's defenses at trial was justifiable homicide. Allegedly, Baker had started up the stairs toward him with an ice pick in his hand, hence there was an assault, Holley contended, which placed him in imminent peril of death or great bodily harm. Petitioner asserted that in this instance the law impliedly authorized him to kill his attacker through the lawful self-defense of using his shotgun. For discussion of innocent homicide see Perkins on Criminal Law, 28-29 (1957 Ed.).
It seems that the State had anticipated this defense at trial. Therefore, the assistant prosecutor called Willie Frank Jordan to the stand. After Jordan was sworn in, the following direct examination transpired:
'Q Mr. Jordan, where do you live? A 32 West Kinney, Newark.
'Q With whom do you live at that address? A Sir?
'Q Whom do you live there with, or do you live there alone? A Me and my wife Cora Lee Jordan.
'Q You live there with your wife? A Yes, sir.
'Q How long have you lived there? A Just about two years.
'Q Just about two years. Have you ever been convicted of a crime?
'MR. FIELO: Oh, object to that, if the Court please.
'THE COURT: I will allow it.
'Q Have you ever been convicted of a crime? A Yes, sir.
'Q What was the crime? What was ...