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 Francis, J.
Defendant shot and killed his wife Geraldine Thornton on February 8, 1960. Subsequently he was indicted for murder and after trial was convicted of murder in the second degree. On November 30, 1960 he was sentenced to State Prison for 25 to 30 years. He has appealed directly to this court under R.R. 1:2-1(c), seeking reversal of the conviction because of alleged prejudicial errors in the admission and rejection of certain evidence, in the trial court's charge on self-defense, and in certain portions of the prosecutor's summation.
Defendant and his wife were married on February 9, 1952. It was the second venture for both, their first marriages having ended in divorce. For a few years their life together was happy. After that, incompatibility set in and their relationship became a stormy one marked by a series of separations and reconciliations. It is evident from the proof that they were nervous, tense and temperamentally volatile persons. Evidence was offered also to show that each was suspicious and jealous of the other. Thornton had been under regular medical treatment for a stomach ulcer from 1957 to the date of this homicide. In fact, Mrs. Thornton also was under the care of the same physician for a nervous ailment. He became aware of their domestic discord and recommended that they consult a psychiatrist.
Proof was adduced by the State that on occasion during the separations defendant had threatened the life of his wife. The defense offered evidence of similar threats by the wife
against the defendant. It appears that on one occasion in November 1959 Mrs. Thornton filed a complaint in the Municipal Court of Newark against her husband charging him with assault and battery. Trial of the case resulted in a not guilty determination.
On November 4, 1959 while they were living in a third floor apartment at 351 Hunterdon Street, Newark, Mrs. Thornton again left defendant and they had not resumed cohabitation at the time of the fatal shooting, February 8, 1960. In December she sued for divorce on the ground of extreme cruelty. He filed an answer denying the charge. Between November 4, 1959 and February 8, 1960, the strife continued. According to Thornton, on one occasion his wife broke into his apartment, allegedly looking for a woman, and, not finding one, smashed articles of furniture and struck him in the head with a figurine. On another occasion (he asserted) she tried to move all the furniture out of the apartment in his absence. At still another time, according to his testimony, she broke all the windows in his automobile.
There is little doubt that the parties had face-to-face and telephone conversations during this last separation period. The purport of these discussions is in conflict. Thornton's version is that his wife wanted to abandon her divorce proceeding and return to him. He testified he told her he had had enough and that she should obtain the divorce. The State offered proof indicating that Thornton endeavored to have his wife's family intercede to "straighten out" their "affairs"; that he had accused his wife of "going with" her step-father and of having a boy friend, one John Lattimore, a Newark police officer. Additional evidence was produced to show that about a week before the shooting defendant said he was going to "kill" his wife or "shoot her." Defendant countered with evidence of threats of harm against him made by his wife and her alleged boy friend.
Thornton had been in the employ of Weston Electrical Instrument Corporation for some time before the homicide. His hours of work were 4:06 P.M. to 12:42 A.M. On
Monday, February 8, 1960 he was not feeling well and decided to visit the doctor instead of going to work. His stomach and nerves had been bothering him and the treatments received on the previous Thursday and Friday had not remedied the condition.
Around noon on February 8, according to Thornton's testimony, he received a telephone call from his wife concerning her continued possession of a key to the front door of the Hunterdon Street building where he still lived. (In his written statement to the police he said he made the call.) In the course of the conversation he mentioned her male friend Lattimore and said that Lattimore had been following him. She gave him Lattimore's phone number, and Thornton alleged that he called Lattimore who cursed at him and said he would "come up" in a few minutes and straighten things out. Thornton claimed he then telephoned the attorney who was representing him in the divorce action and was advised to report the matter to the police. He followed the advice but, according to his testimony, the police officers said nothing could be done. The occurrence of these various conversations is disputed by the State. Lattimore denied ever talking to Thornton on February 8, and there is no police record of the alleged visit by Thornton. The State introduced proof through a friend of the decedent indicating that Thornton had telephoned his wife on this day, as the result of which the wife manifested concern about his sickness and expressed an intention of visiting him. The admissibility of that testimony, which will be discussed more fully later in this opinion, is made a principal ground of defendant's appeal.
Shortly after 7:00 p.m. on February 8, two Newark police officers came to the Hunterdon Street address in response to a telephone report that a shooting had taken place there. The front door of the building was locked and on looking through the glass partition they saw a body on the hallway floor. As they were about to break in, the defendant came down the stairs and let them in. He told them that the person on the floor was his wife and that he had shot her by mistake. He
"mistook her for someone else"; he had mistaken her for "James Lattimore."
In a short time two detectives arrived and questioned Thornton in his third floor apartment. He told them, and later gave a written statement to the same effect, that he had heard the front doorbell ring and thinking that it was his wife's friend Lattimore, who allegedly had threatened him earlier in the day, he took an automatic pistol from a dresser drawer and went downstairs. As he opened the front door in the dark hallway, a figure started to come in and he fired at it, the number of times he could not say. The person "sagged" against him and he realized it was a woman. He put the light on and saw that it was his wife. After trying to get a doctor he asked the telephone operator to summon the police. Then, placing the pistol on a couch in his apartment, he returned to his wife.
The police found the pistol on the couch. On the floor of the hallway near the decedent they discovered an ejected shell and a spent lead bullet. Autopsy showed three bullet wounds in the victim's body. They were "contact" wounds, that is, the bullets were fired at a distance of not more than six inches.
At the trial, the prosecution contended Thornton knew it was his wife who rang the doorbell, and that he had lured here there with the intent of shooting her.
The defense was a complete and radical departure from, and repudiation of, the oral and written version of the shooting. Defendant's explanation of the change was that he did not "want to involve [his] wife in too much" by giving the police the true facts.
On the witness stand Thornton said he had discovered that Lattimore had been following him. He learned also that Lattimore had been seeing his wife. So, for purposes of protection, he began to carry his automatic pistol in the car. On February 8 at about 6:30 P.M., he drove to his doctor's office to obtain treatment for his stomach condition. The pistol was under the driver's seat of the car where he had
placed it a few hours earlier. After parking some distance away and entering the office, he learned that the doctor had not yet arrived. Ten minutes or so later he saw a parking place nearer the office and decided to move his car there. He walked to the vehicle and found his wife sitting on the passenger side of the front seat. He got in alongside of her and a conversation ensued in which she expressed a desire to return to him. On his refusal, and statement that he wanted the divorce to go through, she began to cry and asserted that he preferred someone else. Then (according to his testimony), she said if she could not have him no one else would have him, and took a gun out of her pocketbook. He grabbed her wrist and as they struggled, he reached under the seat for his pistol saying, "I have a gun, too," to which she replied, "You had better use it because I'm going to kill you." She shot first and he fired at her a number of times. Realizing he had shot her, he drove to the doctor's office for aid but the doctor had not arrived. Then he drove his wife at her request to his apartment on Hunterdon Street. There, he carried her into the hallway and laid her down on the floor. She asked for her "bag and things" and he ran back to the car where he "grabbed everything," her bag, shoes and some shells which were on the front seat. (He made no mention of the spent bullet which the police later found in the hallway.) Although he looked for her gun he did not see it. The articles were brought inside and, except for the shells which he put in his pocket, were placed on the floor near his wife. On cross-examination later in the trial, he said he could remember only one shell, and that one he put near the steps in the hallway. Whether the alleged return to the car for these things occurred before or after the police were summoned is not clear from the record.
Trial of the case consumed eight days. The record is filled with a multitude of conflicting statements of various witnesses for the State and the defense. For purposes of this appeal it is not necessary to set forth the factual situation in any greater detail than we have done. The basic theories
presented by the contending parties at the trial level were plain and obviously in irreconcilable conflict. The State claimed that the defendant, after influencing his wife to come to his apartment on the fatal day, shot her to death pursuant to a preconceived design, and therefore was guilty of a premeditated, deliberate and willful killing, i.e., murder in the first degree. The defense asserted that the fatal event took place in Thornton's automobile on the public street and that he shot his wife in self-defense. The jury resolved the issue by finding the defendant guilty of murder in the second degree, which verdict he now seeks to set aside.
At the trial the State produced one Sullie Williams, a cousin of Mrs. Thornton who had known her all her life. He testified that around 4:00 P.M. on February 8, 1960 he telephoned her mother about some clothes he was supposed to pick up, and Mrs. Thornton answered the phone. At this point the prosecutor indicated he wished to prove that in the course of the conversation decedent told the witness of her intention to visit her husband. After defense objection and consultation of authorities, the trial court said he would overrule the objection but would limit the testimony to the portion of the conversation dealing with the decedent's intention to make the visit. Thereupon, the questioning proceeded:
"Q. Now you had a conversation with Geraldine Thornton. Is that correct? A. It is.
Q. What did Geraldine Thornton tell you on the phone? A. She asked me had I seen her husband.
Q. Don't tell us what you said. She asked you if you had seen her husband? A. Yes, and she said he had called her all day, had worried her about to death."
At this juncture the court cautioned the prosecutor as to the limit that had been imposed on the inquiry. Defense counsel apparently was not concerned about the answer. He did not object to it nor move to ...