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.
Defendant appeals directly to this court from a conviction of murder in the second degree. R.R. 1:2-1(c).
The evidence at the trial discloses that defendant and one Aaron Williams, for whose murder he was indicted, lived in "Hagerty's Tenant House" at Cranbury. Each of them occupied separate quarters. On February 25, 1962, while in Williams' room, defendant struck him on the head and shoulder with an ax, inflicting injuries which rendered him unconscious and from which he died on March 22, 1962, without having regained consciousness.
Although there exists some conflict in the details of the events of February 25, the following facts appear from the testimony, a large part of which was supplied by the only eyewitness, Charles Williams (no relation to the deceased), also a tenant at Hagerty's. At about 8 A.M. Charles drove defendant and the latter's girl friend from Cranbury to her home in Hightstown. From there he drove defendant to Forsgate Country Club, where defendant was employed, and waited for him for approximately five minutes. They then proceeded to Jamesburg to visit a friend, and thence to visit another friend in Cranbury, returning to Hagerty's at about 9 A.M. They proceeded to their respective rooms. At about 10 o'clock Charles saw defendant in the room of Aaron Williams. Defendant and Aaron were cursing back and forth in their usual "joking" manner. Aaron picked up a brick from under his bed and stated that he would knock defendant's head in with it. The three, who had been drinking, began to shoot craps at about 11 A.M. Both Aaron and Charles continued to drink during the game. Charles did not observe defendant further imbibing there. Both Aaron and defendant lost some money to Charles. Charles, having left Aaron's room for some ten minutes, upon his return heard defendant
demand that Aaron repay him some money, which he asserted Aaron had improperly taken in the previous night's game. Aaron denied that he owed defendant any money. Charles related that "they cursed back and forth at each other." He stated that Aaron had neither a knife nor a brick in his hand at this time. Defendant left the room and returned five or ten minutes later with an ax in his hand. While Aaron was sitting on his bed defendant struck him on the head with the ax. Aaron fell to his hands and knees. Defendant then struck him with the ax on the left shoulder and on the back of the head. Defendant left the room and threw the ax into the yard in the rear of the house.
Defendant's testimony, although similar to that of Charles in the main, portrayed a different picture of the facts immediately preceding and during the assault upon the deceased. He stated that Aaron made a number of threats against his life before and during the dice game. While playing, they argued and cursed each other. Aaron either hit him or struck at him. Aaron then came toward defendant with a knife. Defendant pushed him back and said, "I don't want to hurt you, boy." Defendant got his ax, which was just outside the door of Aaron's room. The ax had been left there that morning, he testified, by one Horse Drawn, who had borrowed it some time previously. Aaron kept approaching defendant, who attempted to push him away with the ax and then hit him on the shoulder and head with it, in self-defense. Defendant said he then left and went to his own room.
The defendant advances the following reasons for reversal:
The trial court failed to reinstruct the jury that the State had to prove beyond a reasonable doubt that the plea of self-defense was untrue.
It is admitted that in the original charge the court adequately charged the jury that there were five possible verdicts, i.e., murder in the first degree; murder in the first
degree with a recommendation; murder in the second degree; manslaughter; not guilty, and also properly charged the burden of the State in connection with the defense of self-defense.
After retiring and deliberating for some time the jury sent a note to the court which reads: "Your Honor, the jury would like to hear again the explanations or charge of the five possible verdicts. Our deliberation has reached a point where a repeat explanation would expedite our decision." The court proceeded to repeat its original charge concerning these five possible verdicts and also reiterated the portion of the charge delineating the elements of self-defense. He did not, however, reinstruct the jury that the State had the burden of proving beyond a reasonable doubt that the defense of self-defense was untrue. When this omission was objected to by defense counsel the court stated that the jury did not request an additional charge on the burden of proof and defendant's counsel replied, "All right, your Honor."
The record discloses that a detailed and proper charge on the State's burden of proof was originally given by the court. We find no error in the court's failure to recharge as noted. The jury did not request instruction thereon and the repetition of the charge as above stated was clearly, as the trial court announced, "not all of it [the entire original charge] but the part that you apparently wish to have read to you." It cannot be said that the procedure adopted eliminated the original charge on the burden of persuasion. To the contrary, the jury was in effect instructed on the recharge that the answer to its query was specifically limited to the question which it propounded and was given in the light of the balance of the original charge, including the charge on the burden of persuasion.
The use by Doctor Shoemaker of matters not in evidence as a basis for his opinion, where such opinion was an ...