For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The defendant Victor Pacheco appeals from a conviction of murder in the first degree with a recommendation of life imprisonment.
The State charged that the defendant was a participant with Clarence Bobo Nelson (Bobo) in a robbery of Anibal Luiz Oliveria during which Bobo killed Oliveria. Prior to the defendant's trial, Bobo pleaded non vult and was sentenced to life imprisonment.
At the trial the evidence showed that the defendant met Bobo while both were incarcerated in the Cumberland County jail during the summer of 1959. When the defendant was released he returned to his former place of employment, a poultry farm near Bridgeton. One day during the Labor Day week end beginning Friday, September 4, 1959, shortly after Bobo was released from pail, the defendant met Bobo in a bar in Bridgeton. Later that night he took Bobo to the poultry farm and the two men shared the defendant's sleeping quarters.
Bobo was a State's witness. His testimony was to the following effect: While at the farm he told the defendant
he needed money and the defendant said he knew where there was a man living alone from whom he could get money if Bobo was willing "to take it." On Monday, September 7, 1959 (Labor Day), the two men were driven to the center of Vineland by the defendant's employer. With the defendant leading the way, the two men walked to the outskirts of the city where the defendant pointed out Oliveria's farmhouse. Bobo knocked on the door. When Oliveria came out, Bobo told him he wanted to buy some eggs. Then Bobo and the defendant followed Oliveria into the cellar of the farmhouse where the eggs were kept. As soon as they reached the cellar, Bobo grabbed Oliveria around the neck and "put a pen knife to his throat." When this happened the defendant ran out of the cellar into the yard. Bobo struggled with Oliveria and when the latter tripped and fell to the floor, Bobo picked up a stool and struck Oliveria over the head with it three times. After he tied the victim's hands and feet with twine, Bobo proceeded to take the money from the victim's pocket, place it in his own, and as he did, the defendant returned to the cellar. He and the defendant then left the cellar, entered the dwelling part of the house and Bobo proceeded to search for money while the defendant watched. When Bobo completed his search they left the house, Bobo taking a camera with him. Later that day, while they were in the Vineland bus station, Bobo gave the defendant $3.00 as his half of the money taken from Oliveria and threw the camera into a trush can. They then took a taxi to Bridgeton, drank beer in a barroom and parted company.
Oliveria's body was discovered in the cellar of his home the blows struck by Bobo caused his death.
Detective Thomas Jost and Chief Carl Ford of the Vineland police testified that after the defendant and Bobo were taken into custody, they volunteered to re-enact the crime. The police officers' description of the re-enactment was for the most part in accord with Bobo's testimony of what took two days after the crime was committed. It is undisputed
place at the Oliveria farmhouse. However, it differed as to the defendant's participation in the search of the house. Chief Ford corroborated Detective Jost's testimony that during the re-enactment the defendant not only searched the house but also "he (defendant) assisted Bobo in shaking the trunk that was standing on end, in the hopes of pushing it open. To search to see if there was any money in the trunk." On the other hand, Bobo testified that he alone "shook" the trunk both at the time the crime was committed and during the re-enactment. In fact, Bobo never said the defendant actively participated in the search.
Though several additional witnesses were called by the State, their testimony is not pertinent to the issues presented on this appeal.
The defendant testified on his own behalf. He acknowledged that Bobo stayed with him at the farm during the Labor Day week end, but denied having any conversation with Bobo about robbing anyone. His version was as follows: On Monday, September 7, 1959, Bobo asked the defendant to help him find a job on a farm in the area. After they were driven to Vineland by the defendant's employer, they began to walk, Bobo representing to the defendant that he thought he knew where he could get a job. On the way the defendant pointed out several farms where he thought Bobo might find work, but Bobo was not interested in those places. Finally, when they got to the Oliveria house Bobo said, "Let's go in here." After Bobo knocked on the door and Oliveria came out, Bobo said he wanted to buy two dozen eggs. Though the defendant could not understand why Bobo wanted eggs, he accompanied Bobo and Oliveria into the cellar to get them. Thereafter, when Bobo attacked Oliveria, the defendant ran out of the cellar into the yard. Later, when Bobo came out he said to the defendant, "Let's go inside the house." The defendant refused, but Bobo forced him into the house at knife point. Because of the knife the defendant felt compelled to stay with Bobo while the latter searched the
rooms. After leaving the house they went to the bus terminal in Vineland where Bobo gave the defendant $2.00 as his share of the taxi fare to Bridgeton. When they arrived in ...