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 from a conviction of murder in the second degree. R.R. 1:2-1(c). The pertinent facts, as developed at the trial, are as follows:
Defendant, together with George Allen, Bruno Gussie and Warren DeFrazio, robbed a home in Jersey City on April 18, 1962. Without its being known by the other three, Gussie, the last to leave the house, pistol-whipped and raped the wife
of the owner. Defendant, upon learning of the rape on the following day, became quite incensed. When Gussie called defendant and advised him that he [Gussie] was wanted for questioning in connection with the robbery, defendant suggested that he surrender and have his wife prepare an alibi for him. Later the same day Gussie told the defendant that his wife had refused, and demanded money from him to enable him to flee. He emphasized the latter by stating: "And if they do pick me up, just how long do you expect me to last, a man can just take so much."
Shortly after this conversation the defendant contacted Allen and the two of them, using the ruse that they were planning another robbery that night, met Gussie at 8:30 P.M. Defendant, who at Allen's suggestion had purchased gloves so that a parafin test would not later disclose powder grains, had a loaded automatic pistol under the front seat of the car. Allen drove the car containing the three to a parking lot in Ridgefield Park, Bergen County. Defendant and Gussie got out of the car. Defendant shot him in the back of the neck and killed him.
The proofs offered by the State were: (1) defendant's two written statements and various oral admissions; (2) Allen's testimony, to the effect that Gussie had to be silenced to keep him from talking, and that since the defendant had invited Gussie to participate in the robbery he felt responsible for his going "sour"; and (3) circumstantial evidence corroborating the confession and negating the anticipated defense of an accidental killing or killing in self-defense.
After defendant's conviction Allen pleaded guilty to an accusation of aiding and assisting Puchalski to escape apprehension for murder, and the outstanding murder indictment against him for Gussie's death was dismissed. He was sentenced on that accusation to a term of two to three years, and was later tried and convicted for his participation in the armed robbery. On that charge he was sentenced to a term of from five to seven years. While at State Prison, where defendant was also incarcerated, Allen signed a recanting
affidavit dated February 9, 1963, wherein he repudiated his trial testimony as the product of fear for his own life and the prosecutor's harassment. In this affidavit he substantiated defendant's version of the killing (i.e., that it was accidental).
Defendant's counsel took no further action in connection with Allen's recantation until March 1964, when, during the pendency of this appeal, he moved this Court for a remand to permit a motion for a new trial based on this post-trial recantation by the State's key trial witness against his client. This Court granted the motion and the trial judge promptly held a hearing thereon. Allen, when called to testify at that hearing, neither affirmed nor denied signing the recanting affidavit. He apparently had a complete memory failure, testifying that he could not remember the actual killing or anything he had stated at trial or in his recanting affidavit. The trial judge denied the motion for a new trial.
Defendant now advances a two-pronged attack upon his conviction. He argues that (1) his confession was involuntary, and (2) the motion for a new trial should have been granted. ...