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 Schettino, J.
Defendant, Herbert Daley, was tried and convicted of murder in the second degree. His appeal to this Court followed as a matter of right. R.R. 1:2-1(c).
On September 2, 1963 at approximately 6:30 A.M. the body of Lillian Oskutis was found in a parking lot behind Patty's Beauty Shop at 255 Morris Avenue, Elizabeth. She was lying on her back with her legs spread apart about a foot and one-half, her dress and slip were pulled up above her hips and her underpants were torn off and lying on one leg. The inside of each thigh was bruised, her eyes were swollen shut and her face was covered with blood. There was a pool of blood on the ground beneath her head and the objects in the immediate area were blood splattered. Death occurred about 5 A.M. as a result primarily of blood clots on each side of the surface of the brain resulting from one or more blows to the head.
From all the testimony the following facts can be deduced. At approximately 7 P.M. on the preceding evening defendant had entered Woody's Tap Room at 40 West Grand Street,
Elizabeth. He and a companion, Thomas White, sat drinking until sometime after midnight. Daley and another patron started a fight when Daley grabbed the arm of the patron's woman companion. Daley, as a result of the fight, received an injured eye and scratched face, neither of which bled.
Defendant and White left as the result of the fight. They went to a tavern where they were turned away by the proprietor. At that very moment Lillian Oskutis, who had left the 1220 Club at about 12:40 A.M. after having been in there drinking for some time, walked past. They followed her down the street and Daley approached her. Defendant had known her for a period of five or six years and had given her $1 cab fare on the previous evening. On this occasion, she asked defendant for $20. When he refused to give her the money, she started screaming, at which point Daley forced her into the parking lot, slapped and kicked her and finally knocked her down. Daley left her as White approached. White saw her lying on the ground, her skirt pulled up to her hips. He heard her snoring, and she was, to him, apparently unhurt.
White returned to Woody's Tap Room and remained there until approximately 2 A.M. before returning to the parking lot. The victim was still in the same position and condition and snoring. He noticed, however, that the contents of her pocketbook were strewn on the ground and so he stopped, replaced the contents, and placed the pocketbook next to her.
Defendant, meanwhile, had gone to the Penn Diner and then returned to the parking lot where he saw White. Defendant apparently waited until White left before approaching her. He felt her pulse, she began to kick him and he reacted by slapping her and left. Upon again returning, he attempted to pick her up. This time the victim started to bite as well as kick him. He thereupon dropped her back onto the pavement. Daley returned to the Penn Diner where he removed his shirt upon which there was blood and cleaned up.
At approximately 10 P.M. the next night White was arrested. Within an hour Daley was arrested and was then
photographed, examined by a doctor and questioned concerning the murder. At 2:30-3:00 A.M. the police confronted him with White who identified him as the man he had said dragged the decedent into the parking lot. Defendant thereafter agreed to make a statement. The statement was transcribed and at 5:30 A.M. Daley signed it.
Defendant's statement in summary contained the following. He had known Miss Oskutis as a friend. On September 1, 1963 while drinking at Woody's Tap Room, defendant got into a fight with another man. This other man stuck a finger in defendant's eye. After the fight defendant and White left the Tap Room, went to another tavern for a drink or two and left this tavern. While walking on Morris Avenue, he was called by Miss Oskutis who asked him for $20. When he told her that he did not have that much money, she cursed at him, called him filthy names and struck at him. He got mad and pushed her into an alley. When she continued to push him, he slapped her, she fell, kicked at him a couple of times and he thereupon slapped her again. He also said that he became so angry that he kicked her -- but did not remember how many ...