For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
Adele Guido was convicted of murder in the second degree and sentenced to imprisonment for a minimum of 24 years and a maximum of 27 years. She appeals directly to this Court pursuant to R.R. 1:2-1(c).
The victim was defendant's husband. When they first met, she was a young girl and he a professional fighter of some success. He was living apart from his then wife who was suffering from a serious illness. In 1952 defendant and Guido began to live together and in 1953, after the then Mrs. Guido died, they were joined by Guido's child, Lois, age 13. In 1954 they married.
In 1957 defendant gave birth to a daughter, Ava. It was about that time that the deceased became involved with another woman with whom he was intimate until his death. About April 1960, which was one year before the shooting,
decedent went to Florida where he lived with his lady friend. In June 1960 defendant sought unsuccessfully to obtain support through a complaint filed in our State. In December defendant made a brief visit on which he effected a paper reconciliation, following which he returned to Florida. In the months that followed, the deceased returned to New Jersey a number of times for brief periods. It was upon such a visit that he was killed.
All the details of the marital discord need not be stated. It is enough to say it could be found that deceased failed to support defendant or their child; that she sought unsuccessfully to obtain support by judicial proceedings; that she wanted a divorce, while decedent insisted upon holding on to her notwithstanding he would not or could not end his extramarital romance and assume the role of a responsible husband and parent.
The final episode occurred in April 1961. Defendant had moved from their bungalow in New Jersey to a hotel in New York and was actively dealing with an attorney for the purpose of divorce. Lois was living with her, and the infant Ava was with defendant's friends. Guido, returning from Florida and finding defendant had left the New Jersey home, went to her place of employment in New York where, according to defendant and her employer, Guido set upon her forcefully, attempting to choke her and brandishing a pocket knife. He was placated by the employer. Guido insisted defendant return to the New Jersey bungalow and she did.
Back at the bungalow, decedent pressed defendant to move with him to Florida, the infant Ava to remain in New York with defendant's friends. He urged defendant and Lois to raise the necessary funds. Defendant would not agree to his plans. According to her, deceased took a weapon from his traveling bag and threatened to use it, on their child if need be, if she thwarted him. In the early morning of April 17, 1961, after deceased fell asleep on a couch in the living room while watching television, defendant, according to her testimony, took the gun and went into her room, intending to end
her life. Deciding that suicide would be no solution, she returned to the living room to put the weapon back in the suitcase, but when her eyes fell upon Guido, she raised the weapon and fired until it was empty.
With respect to physical abuse, the jury could find that although there were only a few incidents of actual injury, there was the constant threat of it from a man who had to have his way and who would not let go of a woman who had had her fill. It appears that on several occasions shortly before the homicide defendant called the local police to express her fear of harm.
The foregoing resume rests heavily upon defendant's testimony. Her portrait of the deceased was, however, supported by his own daughter, Lois, and we add that we find no evidence which affirmatively questions it. In any event, the jury could so view the case, and hence it is in that light that we must consider the impact of the errors claimed on this appeal.
As we have indicated, the defense pictured Guido as a worthless man of brutal bent. Defendant claimed the vise in which he held her was too much; that she at first thought of suicide, but realizing that it was no answer, she started to return the weapon to Guido's bag only to open fire when she caught sight of the man who would not let her alone. The State, however, contended defendant's motivation was quite different. It contended defendant knew she was pregnant by another man and killed her husband because she feared his reaction if he should learn she was unfaithful. For that thesis two elements would be necessary: (1) that defendant knew she was pregnant, and (2) that her husband could not have caused her condition. We find no proof of either.
As to the first, there is nothing to suggest defendant knew she was pregnant at the time of the shooting. She denied knowledge until she experienced a miscarriage in jail. The medical testimony established that at the time of the shooting
defendant's menstrual period was but a week or so overdue. We note also that in the statement she gave the police some six or seven hours after the homicide, there was not a trace of preoccupation with pregnancy, although the questions put to her would easily have permitted her to claim sexual experience with her husband if the thesis of the State were in her mind.
Nor was there proof that Guido had no access to her. The State relies entirely upon the statement, just mentioned, taken from defendant some six or seven hours after the shooting, wherein she was questioned about her sexual relations with the deceased. Since no one then had any notion that she was pregnant, the questions were not pointedly phrased nor were the answers viewed in that light. The State, however, attempts to read the record of that interview to say that defendant last had relations with the deceased in January. We think that reading is unwarranted. Rather she said she had relations with him "when he first came home in January * * * because I was hoping for a reconciliation at that time for the sake of my child," and:
"Q. From then on, when he saw you, did he insist on having these relations? A. Yes.
Q. And you refused? A. Yes. Eventually, yes, because I felt that his intentions were not good and that he was just using me.
Q. You did not give him the same excuse that you gave at the bungalow, that you were not feeling well every time? A. No, not every time." (Emphasis added)
All that appears is that "eventually," at some unspecified time, defendant "refused," in the interrogator's word, the importunings of her husband by advancing sundry excuses. It would be unreasonable to permit the State to advance so serious a charge upon what at best is an ambiguity, and indeed an ambiguity of the State's own making in its unilateral questioning of defendant.
Thus, with nothing to sustain it, the State pressed the theme that defendant planned this killing to hide her pregnancy. The theme was stated in the prosecutor's opening. The State called one Vincent Vella, who admitted he had
been in defendant's company on several occasions along with Lois and Lois's escort, but who denied sexual relations with defendant. The State pleaded "surprise" and was permitted to neutralize his testimony. The only deviation from the pretrial statement was with respect to the date when Vella last saw defendant, but in the "neutralization" the prosecutor brought out that before trial Vella had refused to answer questions relating to intimacy. In any event the jury had before it a man the State charged to be responsible for her pregnancy. More ...