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 Michael O'Connor, also known as "Moon Mullins," was found guilty of murder in the first degree. The jury recommended life imprisonment and that sentence was imposed. His direct appeal to this Court followed. R.R. 1:2-1(c).
On the appeal defense counsel in his brief alleges a number of trial errors in the admission of evidence, in the failure to grant a mistrial and in the court's charge to the jury. In addition, the defendant himself has filed a memorandum raising some additional issues. Much of his argument relates to the sufficiency of the State's case against him. In reaching our decision, we have given consideration to the matters presented by the memorandum as well as by the brief.
On August 27, 1962 at about 10:30 P.M., Michael Walsh was shot to death in Rocky's Tavern at 373 Palisades Avenue, Jersey City, New Jersey.
The evidence adduced showed that O'Connor and Charles Ross entered the tavern between 6:30 and 7:00 P.M. They sat near the farthest end of the bar from the front door. Sometime thereafter, Michael Walsh and Charles Melley came in. The time was variously estimated by the witnesses as between 6:30 and 8:00 P.M. They took seats near the center of the bar. According to Melley they had spent some time drinking at another bar before they reached Rocky's.
After the four men had been at the bar for a while, according to O'Connor, an unidentified patron came over and told him Walsh had called him "an over-rated bum." O'Connor made no answer nor did he say anything to Walsh. A short time later Walsh walked down to O'Connor and had a brief
conversation with him. Melley did not hear it but said that before leaving to talk to O'Connor, Walsh said, "There's a friend of mine." O'Connor described the incident in this fashion:
"* * * He slapped me on the side heavy-handedly and said 'How are you, Moon?' and I said 'O.K.' and greeted him and said hello to him and he said, 'How are you doing?' and I said, 'Not so hot' and he said, 'Are you working?' I said, 'No, I'm not doing nothing!' He said, 'Ain't the mob taking care of you?' and I turned around and I said, 'The hell with the mob.' I said, 'They don't want friends. They want stooges.' And he said to me, 'Are you implying that I'm a stooge?' I said, 'No sir, there's nothing personal in that remarks.' He said, 'You and I aren't going to fight, are we?' and I said, 'No sir, there's no reason for it,' so then he looked at me and he went back to his place where he was sitting * * *."
According to Melley, Walsh conversed with O'Connor on two or perhaps three occasions. No one heard any argument or loud talk between them. In his testimony, however, O'Connor indicated there were only two conversations, the one just quoted, and the other immediately preceding the shooting.
Melley was not aware Walsh had left his place at the bar again until his attention was called to the presence of Walsh and O'Connor in the pool table area. The pool table was about halfway between the end of the bar and the men's room at the extreme northerly corner of the tavern. Walsh was standing with his back to the pool table and facing the front of the tavern. O'Connor was about two feet from Walsh and facing him directly. The loud voice which attracted Melley was O'Connor's, who said, "Do you want me to shoot you?" Melley could not see any weapon but O'Connor's statement was followed almost immediately by a shot. After the shot was fired, Walsh staggered forward toward Melley, "holding himself." As he did so, he said, "I just got it." O'Connor stood aside and Melley, whose attention was directed toward Walsh, did not notice where he went. Walsh fell to the floor as Melley grabbed for him and yelled, "Somebody do something," but the few patrons there were all hurrying out of the place. One
John Fisher, who was sitting on the front steps of the tavern, heard the shot and came into the barroom. He telephoned the police. They appeared in a very short time. Walsh was dead and his body was taken to the morgue.
Lawrence Harjes, a witness called by the State, was sitting at the extreme front end of the bar near the entrance door. He heard what sounded like a firecracker and saw people start to run out of the place. Then he observed O'Connor standing in the rear of the room holding a gun which he was moving from left to right. Seeing this, Harjes fled also.
O'Connor's version of the shooting conflicted sharply with Melley's testimony. He said that a few minutes after their first conversation he saw Walsh walking toward him again. He thought Walsh was heading for the men's room but he touched O'Connor and said he wanted to speak to him. O'Connor left the bar and followed Walsh who, when he reached the pool table with O'Connor about two feet from him, turned around and "the next thing [O'Connor] knew there was a gun in [his] stomach." Walsh then said, "I can shoot your guts out and get away with it." At this, according to O'Connor, he said, "Why do you want to shoot me?" and simultaneously punched Walsh in the mouth with his left hand. Walsh fell back, off balance, and O'Connor grabbed the hand holding the gun. There was a struggle and the gun went off accidentally. O'Connor then "ripped" the gun out of Walsh's hand and backed away from him. As he backed ...