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.
[43 NJ Page 371] Defendant Louis Van Duyne was tried in the Passaic County Court on an indictment charging him with
the murder of his wife Carol. The jury found him guilty of murder in the first degree and recommended life imprisonment. Following imposition of that sentence he appealed directly to this Court pursuant to R.R. 1:2-1(c).
A number of alleged trial errors are assigned as grounds for reversal. It is argued particularly that the charge of first degree murder should have been removed from the jury's consideration, and that in any event, a verdict of guilt in that degree was contrary to the weight of the evidence. These contentions necessitate an outline of the circumstances attending the fatal incident.
Van Duyne and his wife were married on October 15, 1956. He was 20 years of age and she about 18 years at the time. Their married life, during which two children were born to them, was a stormy one, marred by a number of separations. It is plain from the record that he was not a steady worker. In fact, in June 1961 it was necessary for his wife to obtain a support order from the Juvenile and Domestic Relations Court. And the day before she met her death, she had filed a new support complaint against him. Moreover, less than six months after the wedding he was charged with assault and battery for striking her about the head, face and body and banging her head against a wall. He was fined as a disorderly person in the local municipal court. In October 1959 he was convicted of carrying a concealed weapon and spent some time in the Bordentown Reformatory.
The last separation of the couple occurred on April 5 or 6, 1963, less than two weeks before Carol's death. Van Duyne had not been working since March 27; as he put it, he "just did not report for work on that day." On April 9 Edward Foley, Carol's brother (a bachelor who lived with their mother), took him in until he could find a job and a place to stay. He was still living there on April 18, the day of the homicide.
According to Foley, during the period between April 9 and 18, defendant said he was disgusted with his wife. He spoke in a threatening manner about her. He said he felt like
killing her; that some day he "would go down and beat her brains out"; if he ever started he "would not stop." He said also that some day he would "blow her brains out." Foley told him not to bother her, to leave her alone, and to support the children.
After the separation on April 5, Carol stayed with a Mrs. Mildred Gorman and her five children who occupied a lower floor of the apartment where she and defendant had been living. On April 18 at about 9:00 P.M., after patronizing a number of taverns, Van Duyne decided to visit his wife. When he arrived at the apartment Carol, Mrs. Gorman and her five children, Mrs. Frances Taylor, a friend of Mrs. Gorman, and her three children, were present. Van Duyne's attitude was friendly and after some conversation, he and Carol went into one of the bedrooms where they could have a private discussion.
About a half to three quarters of an hour later, Carol came out of the bedroom hastily and ran out of the house saying, "No, Millie, no," as she passed the room where Mrs. Gorman was standing. Defendant came out of the bedroom right after her and followed her out of the house. The fatal event took place very shortly thereafter.
The State's proof showed that defendant caught up to his wife on Grand Street, which intersects Mill Street, a short distance from the Gorman apartment. He took hold of her arms and held them in back of her. She was crying and he seemed to be pushing her. She fell on the sidewalk and he pulled her up. There was no blood on her face from this fall. One witness heard him say, "Come on home," to which she answered, "I can't," and he said, "Shut up before I kill you." He continued to "pull" her down Grand Street, around the corner onto Marshall Street, the next street, and then into an alleyway near the corner. This narrow alley is 452 feet from the Mill Street apartment.
One witness, an 11-year-old girl, who saw defendant pull his wife into the alley, followed them. On reaching the alley she saw the woman on the ground and the man kneeling or
bending over her "like choking her, like on the back of the neck." The young girl turned away, then returned for another look and saw the man still holding the woman whose face was bloody. Although the record is somewhat confused as to the exact sequence of events, apparently this witness cried out and attracted the attention of two young men in an adjoining building. They saw the defendant kneeling over a woman and asked what he was doing. They received a reply in vile language. Then he said, "Take a look for yourself," and started to run down the street. They pursued but lost him.
Within a few minutes after Van Duyne fled, he was apprehended in a telephone booth about a quarter of a mile from the alley. It developed that he was calling his brother-in-law Foley on the telephone. According to Foley, defendant had just said to him, "Well, it is too late now, babe." At this juncture, he heard another voice, obviously the police officer's, say, "Hang it up."
At the time of arrest defendant had blood on his hands. He wore a white T-shirt which had a massive bloodstain of the splatter type in the center. The chemist who examined his clothes said they showed considerable splashing of blood which indicated to him an impact had occurred and the blood had splashed. Even the trousers were fairly widely bloodstained; the lower left leg particularly showed both contact and splash stains. There was blood also at the right thigh and along the left side of the right leg.
The police were notified and appeared on the scene in a very short time. The assistant city physician of Paterson arrived also. He found the victim face down in a pool of blood and, after examination, pronounced her dead. He observed that her face was "pretty well battered in." There were bruises and lacerations on both sides of her face, her eyes were swollen and her jaw was dropped. The body was removed to the morgue where an autopsy was performed.
The doctor who performed the autopsy found blood over Mrs. Van Duyne's entire face and both arms from elbows to hands. There was dirt from the alley from her neck down and
over both lower extremities. She had a broken nose, broken upper jaw and her right eye was black with marked swelling. She had a one-half inch laceration above and on the outer side of the right eye, abrasions on the left forehead, both knees and right elbow. There were bruises and small scratch marks, probably fingernail marks, on her left wrist. The condition of the upper jaw, described as a fracture, was unusual. As explained by the doctor, the upper jaw had been detached or broken away from the skull. Considerable blunt force was required to produce that condition. Such force can be applied by a blow of a fist. (At this juncture it may be noted that Mrs. Van Duyne was 5 feet, two and one-half inches tall and weighed about 115 pounds. Defendant was 5 feet, 10 inches tall and weighed 170 pounds. Moreover, by occupation he had been a laborer doing heavy physical work.) The broken nose and detached jawbone caused a rupture of a substantial artery in the area which resulted in severe and fatal hemorrhages. On the happening of that type of sudden rupture, the blood would spatter and flow copiously. The autopsy revealed decedent had lost the major portion of her blood.
Defendant denied he had beaten his wife with his fists, or knocked her down or banged her head or face on the ground. He said he had sexual relations with her in the bedroom of Mrs. Gorman's apartment, after which he began to tease her about his association with another woman. She became upset and ran out of the house. He followed and caught up to her on Grand Street. He testified that as he approached her, he said he had been teasing her and there was no other woman. He put a hand on her shoulder but she kept moving, "mumbling" as she proceeded. Thereupon, he left her and went directly across the street. From that vantage point he watched her. She proceeded down the street "stumbling like" and then she fell. She got up and continued "in the same running condition" around the corner onto Marshall Street. As he watched, she fell again at the alleyway on Marshall Street. He recrossed the street and found her standing in the alleyway. He asked what was the matter and took hold of her,
"her face right on his chest." She said she was hurt and collapsed. She was bleeding profusely and he tried to comfort her. A young boy appeared and Van Duyne asked him to get an ambulance. Then he saw two men on a nearby porch and heard them "hollering and screaming." This made him "panicky" and he left not "to escape or get away," but "to get help." As he ran, he tried to "think of a phone" and ultimately remembered the one he was using to call his brother-in-law, Foley, when he was arrested.
The defense produced an ear, nose and throat specialist as an expert witness. He said a fracture detachment of the upper jaw from the skull could be caused by a person running into a wall or a fall on a flat, hard surface, or by a blow of a fist. He would not say, however, that such a result was reasonably probable in any one of the situations mentioned because of the amount of force ordinarily required to bring it about.
The assistant medical examiner of Essex County testified for the State in rebuttal. He had performed about 8,000 autopsies and had seen several hundred cases involving a fracture separation of the upper jaw from the skull. He said a considerable amount of force is required to produce such an injury, and he expressed the view that it would not result from a fall on a flat surface or a fall against a wall which occurred while the person was walking, staggering or running. A blow with a fist, ...