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 Haneman, J.
John B. Lynn (Lynn) and Dollie Fair (Fair) were charged in a single indictment with the murder of Aaron R. Rudesel. After a joint trial the jury returned a verdict of second degree murder against Lynn and manslaughter against Fair. Both defendants appeal their convictions to this Court as of right. R.R. 1:2-1(c).
The facts adduced at trial indicate that on September 2, 1962 the Newark police were summoned to the apartment of one William Knox at 316 Norfolk Street, Newark, where they found the body of Rudesel. The cause of Rudesel's death was a single stab wound in the chest, but he also suffered two superficial stab wounds in the neck, and cutting wounds on his left thigh and on the middle finger of his left hand.
Knox, the lessee of the apartment in which Rudesel was killed, testified that Fair had rented a room of his apartment from him, and that both Fair and Rudesel lived there together. In the forenoon of September 2, Rudesel left the apartment for a short time to purchase some whiskey. During his absence a man named "Jake" (later identified as the defendant Lynn) came to the apartment to see Rudesel and waited for him to return. Some time after Rudesel returned
Knox left Fair, "Jake" and Rudesel in the kitchen, and he went into the front bedroom and fell asleep. A short time later he was awakened by a crash in the kitchen. Upon investigating he discovered the kitchen table upset, dishes on the floor, and Rudesel sitting in a chair with blood on him. Just as he reached the kitchen he saw "Jake" go out the back door.
The above was basically the story that Knox told the police upon their arrival at the scene, and after they questioned him two police officers were detailed to apprehend a man by the name of "Jake." Their investigation led them to an apartment house at 291 Norfolk Street, where they ascertained that a man by that name lived in one of the apartment units on the third floor. The two officers were joined by three others. Three of these officers then proceeded to the third floor where there were at least three apartments. While one of the officers knocked on the door of one apartment another officer knocked on the door of a second. There was no response at either, but on hearing a noise in Lynn's apartment, they broke down the door; wherein they discovered Lynn, sitting in a chair, in front of a stove on which a chicken was cooking. Under a newspaper lying on the floor they discovered a bloody polo shirt. The undershirt he was wearing when the police arrived also had blood on it. After frisking Lynn, one of the officers stated to him that Rudesel was "in pretty bad shape," to which Lynn allegedly answered, "Yes, I know. I had a fight and I did it." Lynn was arrested and taken to police headquarters. The following day he gave a statement to the police, the gist of which was that he remembered going to the Knox apartment but became so intoxicated that he had no recollection of any fight with Rudesel.
The facts surrounding the actual stabbing are very unclear, caused at least in part by the alcoholic condition of the eyewitnesses thereto. The pertinent testimony of the key witnesses is as follows:
Emily Williams testified that on the morning of September 2 she and Fair had been visiting in the neighborhood, and
then went back to the Knox apartment. Lynn arrived shortly thereafter, followed by Rudesel. They were all sitting around the table in the kitchen when she suddenly saw Rudesel standing over Fair, and although she was not too clear, she thought that Rudesel had started an argument and a fight by hitting Fair. Fair picked up a paring knife from the table, went towards Rudesel and struck at him several times. She was unable to see whether Fair cut him with the knife because she was "scared and trying to get out." As Rudesel was reaching in his pocket for something, Lynn, who was at the other side of the table from Fair and Rudesel, picked up a knife and "came in and he got into it." At this point Lynn got between Fair and Rudesel and was "cutting at this man with a knife." After Lynn struck at him, Rudesel brushed past her and fell on the back porch. She ran down stairs out of the hallway door.
The defendant Lynn testified that he woke up about 4 A.M. on September 2 with a severe toothache. To alleviate his pain he started to drink gin, and by seven o'clock he had finished a pint. His brother-in-law came to his apartment about 7:30 with some vodka and he had several drinks of that. Lynn then went to a store to purchase food for the day and returned with a hen, which he proceeded to clean. Later that morning, on his way to the store to purchase additional food, he met Rudesel, who invited him to his apartment for a drink. Lynn accepted and accompanied him to the Knox apartment. Upon arrival there Rudesel asked Knox where Fair was. Upon learning that she had gone across the street Rudesel left to get her, leaving Lynn sitting at the table in the kitchen by himself. Lynn claims that his memory from that point on is a blank; he does not recall seeing Rudesel or Fair, or ever having met Emily Williams.
Dollie Fair testified that she and Rudesel had been sweethearts for about eight months prior to his death. On the night before Rudesel's death they had been to a tavern, and returned to the apartment at about 1:45 A.M. At about 8:00 or 8:30 Fair arose to fix Rudesel some breakfast. She then
went across the street to another apartment and had several drinks. Rudesel came to get her and they returned to the Knox apartment. When they got there Lynn was in the kitchen and Emily Williams arrived shortly thereafter. All four of them had some drinks from a pint of whiskey which Rudesel had furnished. As she and Emily Williams were eating, Rudesel commenced to berate her for having gone across the street, and suddenly hit her in the mouth. She grabbed a paring knife and struck at Rudesel, with her eyes closed. Rudesel grabbed her hands and pushed her down in a chair, accusing her of having cut him on the shoulder. Rudesel said, "I will get even with you for that"; took a knife out of his pocket and cut her on the finger. At this point Lynn jumped up and said, "Man, you shouldn't cut your woman like that." He then intervened on her behalf, and she ran out the back door and up the stairs to another apartment to call the police. Fair stated that she did not see Lynn cut Rudesel nor did she ever see a knife in his hand, but when she came back downstairs from making the telephone call she saw Knox who told her that "Aaron [Rudesel] said Jake stabbed him." (During her direct testimony she repeated this hearsay accusation of Knox on three occasions.) After learning of the stabbing she went to the home of her aunt. Later that day, at her aunt's suggestion, she surrendered herself to a detective, to whom she allegedly stated: "Aaron [Rudesel] hit me in the mouth and I may have cut him. I'm not sure. I didn't think I did, I had a knife." She later denied that she told the detective that she had stabbed Rudesel and denied that she did stab him.
Lynn first argues that his arrest, effectuated by the police breaking into his apartment, without a prior oral demand for admission, was illegal and unconstitutional, and that the admission into evidence of the fruits thereof, i.e., the bloody clothing and the oral statements he had made to the
police, was improper. Although defendant did not move to suppress in accordance with R.R. 3:2A-6(a), and indeed made no objection to the admission of this evidence at the trial, he contends that such damaging evidence had the clear capacity to bring about an unjust result and therefore constituted plain error. See R.R. 1:5-1(a); State v. Williams, 39 N.J. 471, 485 (1963), cert. denied 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2 d 1075 (1963). Although the issue is not before us because of Lynn's failure to comply with the mandate of the rule, we find the contention without merit.
When the validity of a search rests upon an arrest, the lawfulness of the arrest is to be determined by reference to State law insofar as it is not violative of the Federal Constitution. Ker v. State of California, 374 U.S. 23, 37, 83 S. Ct. 1623, 1632, 10 L. Ed. 2 d 726, 739-741 (1963). The common law of arrest is extant in New Jersey. State v. Mpetas, 79 N.J. Super. 202, 207 (App. Div. 1963), citing State v. (James) Smith, 37 N.J. 481, 493-494 (1962). Ordinarily the common law requires that peace officers may break into a dwelling house for the purpose of making an arrest only after demanding admittance and explaining their purpose. Cf. Ker v. California, supra; State v. (James) Smith, supra, 37 N.J., at pp. 497-500; State v. Doyle, 42 N.J. 334, 345 (1964). Compliance with the general mandate of such antecedent conduct is not required, however, where: (1) immediate action is required to preserve evidence, State v. Doyle, supra; (2) the officer's peril would be increased, People v. Maddox, 46 Cal. 2 d 301, 294 P. 2 d 6 (Sup. Ct. 1956), cert. denied 352 U.S. 858, 77 S. Ct. 81, 1 L. Ed. 2 d 65 (1956); or (3) the arrest would be frustrated, People v. Maddox, supra.
Here, although the police officers knocked on Lynn's door they made no oral demand for admission nor any announcement of their identity or purpose. On the facts herein, however, it must be remembered that the arrest, effectuated by a forcible entry, occurred shortly after the ...