For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[44 NJ Page 178] Defendant Wolf was convicted of murder in the first degree in the Hudson County Court and was sentenced to life imprisonment in accordance with the recommendation of the jury. He appeals directly to this Court. R.R. 1:2-1(c).
The conviction was based upon a finding that Wolf participated with one Robert O'Connell in the commission of an armed robbery on November 4, 1960, in the course of which the victim, Dr. Max Pascher, a Union City, New Jersey dentist was shot and killed. The thesis of the State was that O'Connell entered the doctor's office and committed the robbery and killing, while Wolf, who had planned the crime and furnished the gun used by O'Connell, remained outside on the public street waiting for him.
O'Connell pleaded non vult to the indictment for murder and testified for the State at the trial. He was the principal witness against Wolf who denied participation in the robbery. According to Wolf, O'Connell talked to him at his hotel in Newark, New Jersey on November 3, 1960 about holding up the doctor who might have one or two thousand dollars in his possession. Wolf expressed doubt that the doctor would have so much money on his person, but agreed to go along with O'Connell the following day to look over the place.
Early in the afternoon of November 4, O'Connell and Wolf appeared in the vicinity of Bergenline Avenue and 49th Street in Union City where Dr. Pascher's office was located. O'Connell was carrying a satchel containing a gun, a pair of gloves, a roll of adhesive tape and some nylon stockings. The satchel and contents, he said, were supplied by Wolf on the morning of November 4 at the apartment of a Mrs. Ruth Ortiz, a friend of O'Connell, in the presence of Mrs. Ortiz and his brother, James O'Connell. Wolf denied furnishing the satchel, its contents or the gun. He insisted the articles belonged to Robert O'Connell. Mrs. Ortiz testified for the State that she saw Wolf bring the bag into her apartment. James O'Connell corroborated her and in addition said he looked into the bag and saw a gun there.
According to O'Connell, Wolf, who had planned the robbery, pointed out the doctor's office and said he would wait on 48th Street ["to cover my back"] while O'Connell committed
the holdup. O'Connell undertook to do so, met with some resistance and shot and killed the doctor. Then he took what money the dead man had on his person. On returning to 48th Street, he handed to Wolf the bag containing the gun, the other articles already referred to and the victim's wallet (from which he had extracted $20). The men then separated, having agreed to meet later at Wolf's hotel in Newark, New Jersey.
Wolf admitted going to Union City with O'Connell before the holdup to look the situation over. But he testified that on seeing the doctor's office he scoffed at the idea of realizing a substantial sum from a holdup there and said he would have nothing to do with it. He maintained he left O'Connell and went to a bar where he remained for an hour or so before returning to Newark.
O'Connell was arrested on December 31, 1960 and implicated Wolf who was then picked up by the police on January 2, 1961 and brought to Union City police headquarters at about 2:30 P.M. on that day. After learning that O'Connell had admitted the crime and had involved him, Wolf confessed and his confession was completed and signed by him around 11:45 P.M., about nine hours after his arrest. At the trial he repudiated the confession asserting it was untrue and the product of police brutality and coercion.
There were no eyewitnesses to the holdup or the murder. According to the State, O'Connell and Wolf were the sole participants. Although the prosecution adduced some independent testimony of an inculpatory nature against Wolf, it is apparent that the principal witness against him was O'Connell. Thus a decision by the jury as to the truthfulness of the two men was of great importance.
Separate indictments were returned against Wolf and O'Connell sharging each of them with the felony murder of Dr. Pascher. Both pleaded not guilty. On May 5, 1961 O'Connell changed his plea to non vult and agreed to testify for the State. At the trial of Wolf, which began on June 12 and ended on June 24, O'Connell testified that Wolf was the
instigator and planner of the robbery, that he supplied the satchel containing the loaded gun and other articles described above, waited on the street while O'Connell perpetrated the crime, and then he took the satchel, including the murder gun and the doctor's wallet to his hotel in Newark.
On cross-examination it developed that shortly after O'Connell was arrested on December 31, 1960, he admitted participating in the holdup with Wolf. At that time he said, however, that he accompanied Wolf into Dr. Pascher's office but that Wolf carried the gun and fired the fatal shots. Then at 6:30 P.M. on January 2, 1961 O'Connell changed his version of the affair and signed a statement admitting that he went into the office alone carrying the gun (which had been furnished by Wolf) and in the course of the robbery shot and killed the doctor. He said further that Wolf remained outside and waited for him in accordance with their plan.
Direct examination by the State produced O'Connell's admission that on February 10, 1961 while he and Wolf were confined to the same jail, he managed to send the following letter to Wolf:
I have a few ideas and want your opinion. If you want to beat this I'm sure it can be done.
I'm going to plead not guilty and refuse any lesser charge (they may offer 2nd degree). I'm pretty sure you are going to do the same. Jimmy sent me down word that he won't testify against us and without his testimony there isn't much of a case. I'm going to see him next Sunday in church and tell him that if he does testify I am going to do the following: (1) say that he was in on it (2) say that you wasn't (3) say that he is a spurned lover and is trying to get rid of me (4) he implicated you because he knew there was two people involved, that you had a record and that we knew and disliked each other (5) say that the gun was his and that he had it when I came out of prison as he showed it to me my first night out and say that he was my partner in the Newark hold-up.
Ruth is coming up to see me in a couple of weeks (she writes every day) and I'm going to tell her to say that she never saw you before my arrest and that you was never up her house. As far as I know you don't know her address. I'm going to tell her to say that she saw me with a automatic pistol not a revolver. As far as Joy goes she was jilted & wanted revenge. Either way you'll be covered. I can't see any reason for you to do time because of him.
Let me know what you think of it. If you have any better ideas and feel like it, let me hear them. If we fight this together we can beat it but if we have two different stories in court we're both going. If you try shifting any weight I swear to Christ you'll come with me.
Let me know if your going to stand alone or not."
The "Jimmy" referred to is O'Connell's brother; "Ruth" ...