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 Schettino, J.
[43 NJ Page 20] Defendant, Evaline B. Ray, was indicted in two counts; the first, for murder, the second, for manslaughter
of her husband, Burt R. Ray. She was convicted of murder in the second degree and sentenced to 10 to 15 years. Defendant appeals to us as of right. R.R. 1:2-1(c).
On August 4, 1962 defendant and her husband left their two children at the home of defendant's mother, and attended the afternoon wedding of Charlotte and Hugh Mendez in East Orange. The husband was a member of the wedding party. Following the wedding and reception, they attended further festivities at the bride's home.
The State introduced four witnesses who testified that there was trouble between the defendant and her husband at the party. Mrs. Hilda Williams, the bridegroom's sister, stated that defendant was crying, and that she heard defendant remark that the husband was "mean." Mrs. Flora J. Hammie, sister of the bride, said that defendant told her at the party that her husband had insulted her. The witness added that defendant was upset.
The bride and groom gave almost identical testimony as to an incident that occurred on a staircase, as they were coming down to leave for their honeymoon trip. They met the Rays on the stairway and Burt Ray handed them $10 as a wedding present. Defendant took an additional $10 from her husband's hands and gave it to the bride. The latter returned the additional $10 to Mr. Ray commenting that they [the Rays] could not afford to give $20. Both Mendezes testified that as Burt Ray was pocketing the money, defendant tried to push him down the stairs, saying to him, "I'll kill you. I'll kill you."
No one else testified to the staircase incident and defendant denied either threatening or pushing her husband.
Sometime around eleven o'clock the Rays left the wedding reception because defendant was not feeling well. Mrs. O'Bannon, the Rays' landlady, remembered that the Rays came home about 11:20 P.M. and that they were "talking loud." She recalled defendant's saying to Burt: "If you want to go out you can go home." Mrs. O'Bannon also testified that Burt Ray went upstairs, and that defendant
stopped in to say she had a nice time. She noted that defendant appeared to be "staggering" and that defendant was "going back and forward * * * hitting the wall."
This witness next recounted that after she had gone to sleep, defendant came down, woke her up, and asked her to come up to Rays' apartment because she had "stabbed" her husband. Upon arriving at Rays' apartment, she saw Mr. Ray on the couch with blood coming out of his chest and also saw defendant breathing into her husband's mouth. The witness noticed a knife on the couch when she entered but did not recall seeing any blood on it. At defendant's request Mrs. O'Bannon called the police who arrived in 10 or 15 minutes.
Three police officers testified that they found Mr. Ray unconscious, being held in a semi-upright position by his wife who was breathing into his mouth. Two of the officers stated that defendant told them words to the effect; "I didn't mean to cut him. Please don't let him die." The third testified that defendant told him of an argument between herself and her husband in the kitchen, that she took out a knife and that her husband ran into it.
An inspection of the premises by the police revealed blood only in the immediate vicinity of the living room couch where deceased was lying when they arrived on the scene. There was no knife on the couch. An investigation of the kitchen turned up two knifes in a rack, one of which was wet. There was also water on the sink and on the floor near the sink. When confronted with the two knifes, defendant pointed out the wet one as the death dealing instrument. Mrs. O'Bannon denied that she washed the knife or that she saw the defendant wash it.
Defendant gave the following account of the events of the fateful evening. Following the party, she and her husband drove home, arriving at the apartment about 12 o'clock. Her husband went into the living room, sat down and started reading a paper while the defendant went into the bedroom, undressed and made ready for bed. While she was in the
bedroom, the telephone rang and the defendant answered it in the kitchen (although she conceded there was also a telephone in the bedroom). She recognized the voice of Hilda Williams who, after asking defendant how she was feeling, requested to speak to Mr. Ray. Defendant called her husband to the kitchen telephone. Defendant went to her bedroom and listened in on the conversation on the bedroom telephone. She testified that Mrs. Williams tried to make a date with Mr. Ray but that he said he did not know if he could get away. At this point, defendant ran into the kitchen and confronted her husband with words to the effect: "What's the idea of playing me second fiddle?" Defendant said that her husband became upset and "told me why don't I mind my g-d business.", and that she became frightened of him because he had never before used profanity to her. He then said, "I'll fix you," and started towards her and "he looked very angry." She reached up, grabbed a knife from the rack, and held it in front of her, stating, "Don't come over here -- stay away." She related:
Q. And what happened? A. I took my hand and I pushed him back.
Q. And what happened? A. As he got up on to the knife he stopped short.
Q. And then what happened? A. Then he backed back.
Q. Did he say anything? A. He said, 'You cut me.'
Q. And what did you say to him? A. I told him I didn't cut him. He walked into it hisself.
Q. And then what did he say? A. He backed back and I looked in his face and he got boiling mad. I never seen him that angry before.
Q. Then what did he do? A. He came running at me head first like an animal, like a bull or something like he was going to knock me down.
Q. And then what happened? A. Then he walked away, and he walked past me, went into the living room.
Q. Did you at any time move that knife that you were holding there? A. No, I had it in my hand.
Q. You never moved it? A. No."
Defendant testified she did not feel the blade going into her husband's body; nor could she recall what she did with the knife after the incident although she denied washing it.
On cross-examination, defendant demonstrated how she held the knife once she had removed it from the rack. Unfortunately, any description in the record falls far short of conveying an accurate picture of this significant detail in the case. However, the following was educed. Defendant held the knife in her right hand, "straight forward" and demonstrated that she held it "below the shoulder" or "around the level of her breast" and "she held the knife with the thumb up and then changed it to the thumb down."
After the above described incident, Mr. Ray left the kitchen, went into the living room, hollering and clutching his chest, and sat on the couch. She went in and asked if he was all right. She then saw the blood, and proceeded to call the police and ambulance in the kitchen before running downstairs to enlist Mrs. O'Bannon's aid. Upon returning, defendant noticed her husband was turning white and losing breath, so she began breathing into his mouth and was doing this when the police came.
Defendant recalled she was in her "stocking feet" and her husband had shoes on at the time of this knife incident. She estimated her height to be five feet seven and a half inches, and her husband's to be about six feet three inches with shoes.
Defendant initially contends that the trial judge's frequent intervention in the proceedings was improper and resulted in depriving her of a fair trial. Particular emphasis is placed on the judge's interrogation of defendant and her witness, which, it is claimed, substantially prejudiced her cause. We agree with defendant that the trial judge's conduct, ...