For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. For affirmance -- None. The opinion of the court was delivered by Francis, J.
The Grand Jury of Ocean County returned an indictment in two counts against defendants Irene Pickles and Calvin Pickles, her husband. The first count against both defendants charged that "on divers dates between September 1, 1962 and October 9, 1962" they "did willfully, maliciously and feloniously mistreat their son, Michael Pickles, a child of four years, and treat him in a cruel, violent and unlawful fashion," contrary to the provisions of N.J.S.A. 9:6-3. The second count charged Irene Pickles, alone, with manslaughter in that "on or about the 4th day of October 1962 [she] did feloniously kill and slay Michael Pickles," contrary to N.J.S. 2A:113-5. Following trial by jury on both counts of the indictment, defendant Irene Pickles was convicted of manslaughter; both defendants Irene Pickles and Calvin Pickles were convicted on the neglect count. Irene Pickles was sentenced to three to five years in the Clinton Reformatory on the manslaughter conviction, and on the neglect conviction to an indefinite term in the same reformatory, the two terms to run concurrently. Calvin Pickles was sentenced to one to two years in the New Jersey State Prison on the neglect count conviction. While their ensuing appeal from the judgments was pending in the Appellate Division we certified it for determination in this Court.
The trial, which began on January 16, 1964, extended over a period of more than five weeks and consumed 25 court days.
The record presented to us contains almost 2,400 typewritten pages. The case would have been disposed of in half the trial time, and with a record perhaps half its present size, but for the exasperatingly prolix and repetitious examination of witnesses and arguments of defense counsel, the intemperate and undignified comments, interjections and statements of the assistant prosecutor, and the inexhaustible patience of a kindly judge. Moreover, it may be noted that on this appeal appellants' brief plainly violates our rules. It contains 105 pages, the limit being 50 pages. No leave was sought to exceed that limit. R.R. 1:7-7. In addition the brief contains 41 questions to be presented, covering more than six of its pages. See R.R. 1:7-1(c). On the other hand, the State's brief, although only 42 pages in length, does not make a single page reference to the typewritten transcript or appendix in its counter statement of facts. Further, although 17 points were argued, many of which contain allusions to testimony of witnesses, such page references appear only on three pages in the brief. This too violates R.R. 1:7-4(a)(4); R.R. 1:7-1(d). Reference to these matters is particularly important because in our view, for reasons to be stated, the interests of justice require a reversal of the defendants' convictions and a remand for a retrial -- which we fully expect to be a more decorous one, reflecting when necessary the presence of a firm judicial hand.
THE CHARGES AND THE STATE'S BILL OF PARTICULARS
The State's charge of manslaughter against Irene Pickles was based primarily on two theories: (1) On or about October 4, 1962 she placed her four-year-old son Michael in hot water for the purpose of punishing him without intending to cause his death, but that her act in placing him in the hot water was reckless and wanton and with utter disregard of circumstances likely to produce his death; (2) after placing the child in the hot water, she knew that he had suffered severe
burns therefrom over about a third of his body, and knowing that such burns presented a high degree of probability of serious harm and being under a duty as a parent to provide care for the child, in reckless indifference to the consequences she failed to obtain timely medical attention for him, as the result of which he died on October 12, 1962.
The neglect count of the indictment against Irene Pickles and Calvin Pickles was based primarily on the State's position that after the child was burned seriously on or about October 4, 1962, they were criminally neglectful of their duty as parents to obtain proper and competent medical treatment for him. However, the charge was designed to encompass alleged acts of neglect by them separate and distinct from, but in addition to, the allegation of neglect based on the failure to obtain medical treatment for the child. The indictment, as noted above, charged that on divers dates between September 1, 1962 (a month and four days prior to the alleged bath) and October 9, 1962, defendant-parents treated their son Michael in a cruel, violent and unlawful fashion, contrary to N.J.S.A. 9:6-3. The statute makes it a misdemeanor for any parent having the care, custody or control of any child, to abuse, abandon, be cruel to or neglectful of such child.
The defense requested particulars as to the alleged acts of neglect and the dates thereof. The assistant prosecutor furnished particulars in letter form, which he agreed in open court to be bound by just as if they were submitted in the fashion of a formal bill of particulars. The specification of the acts of neglect (except for Mrs. Pickles' alleged act in causing the burns and for the failure of both defendants to procure medical attention) was:
"The defendant Calvin Pickles, on at least several occasions, knowingly left his son, Michael, at his home, only in the company of Michael's infant brothers, Thomas and Robert. The children including Michael often begged neighbors for food, and they were often refused use of the bathroom in the house; consequently they wet their pants, all to the knowledge of Calvin Pickles."
Precisely the same specification was made against Irene Pickles.
Defendants' request for the dates of alleged commission of these acts of neglect obviously called for dates within the period set forth in the indictment, i.e. September 1, 1962 to October 9, 1962, the date on which the parents first sought treatment by a physician for their son. For some reason the State answered:
"These acts were committed by the above named defendants at diverse dates between January 1961 and mid October 1962, at or in the vicinity of the home of the defendants, 34 Adelphia Road, South Toms River, New Jersey." (Emphasis added)
We have emphasized the January 1961 date because of some serious difficulty which arose in connection with the State's introduction of rebuttal testimony. No explanation was furnished as to why events prior to September 1, 1962 were referred to in the bill of particulars. The State recognized clearly that proof of the crime charged would be limited to the period between September 1, 1962 and October 9, 1962. At the trial the assistant prosecutor during an argument concerning the dates recited in the bill of particulars said: "This bill of particulars in no way can enlarge that indictment."
At the opening of the trial defense counsel moved for a severance of the neglect counts from the manslaughter count and requested that the matter proceed on one or the other of the charges, but not on both at that time. He asserted that the evidence introduced on the neglect charge might be very prejudicial, particularly on the manslaughter charge against Mrs. Pickles. The argument is not very clear but the force of it seemed to be that the evidence supporting the statutory offense of neglect, if accepted by the jury, might well lead them to conclude, without adequate consideration of the more serious nature of the charge of manslaughter, that guilt of manslaughter ought to follow.
The State justifiably argued that the motion was tardy. The trial court, however, heard the parties on the merits.
The assistant prosecutor urged that the court could "adequately protect" against defendants' fears in its charge. He suggested that the court would charge specifically what the jury must find to convict of manslaughter, and what must be found to convict of neglect of the child. And he argued that although a severance was discretionary, it should not be ordered in this case. The motion was denied, the trial judge saying he recognized it as his basic obligation to define the two crimes for the jury in his charge, and that under the circumstances the situation did not call for a severance. The refusal to grant the severance is one of the grounds of appeal. It may be noted here, as of some pertinence, that during the defense attorney's opening to the jury a controversy arose about his criticism of the general nature of the neglect charge in the indictment. In the course of the discussion the court pointed out that the State had furnished a bill of particulars in letter form and "conceded that it will restrict itself to the facts set up" therein.
PROBLEMS THAT AROSE BECAUSE OF THE JOINT TRIAL OF THE NEGLECT AND MANSLAUGHTER CHARGES AGAINST BOTH DEFENDANTS
On the evening of October 9, 1962, Irene Pickles and Calvin Pickles brought Michael, their four-year-old son, to the office of Dr. Albert Pietroangelo in Toms River. The child was comatose and critically ill and the doctor arranged for his immediate admission to the Community Hospital. A pediatrician was called whose examination disclosed third degree burns of about 35% of the boy's body. The burns were on the buttocks, the genital area, both thighs, in the area of the navel, the entire right hand and part of the wrist, and a small area on the back of the left hand. An unusual and undoubtedly significant aspect of the boy's condition was that the burns extended from the buttocks about halfway down both thighs; from there to a point about halfway down
the legs, there were no burns; the burns began again about midway down the legs and covered the remainder of the legs, as well as the ankles and feet. A series of pictures, both in color and in black and white, vividly portrayed the condition as it appeared to various witnesses shortly after the hospital admission. There was much argument at the trial about their admissibility, and their receipt in evidence is challenged before us. The challenge is without merit. They were obviously admissible and undoubtedly played a substantial role in the deliberations and findings of the jury. According to defendants, particularly Mrs. Pickles, the boy's condition resulted from urine burns over a period alleged variously from five days to two weeks. The pictures cast serious doubt, to say the least, on the credibility of that story. After seeing the child one of the hospital physicians notified the prosecutor's office, as indeed it was proper for him to do in the public interest. See, McCoid, "The Battered Child and Other Assaults Upon the Family," 50 Minn. L. Rev. 1 (1965).
Despite efforts of the doctors at the hospital, Michael died in the early morning of October 12. He was buried on October 16. That afternoon, in response to a request to do so, Mr. and Mrs. Pickles appeared at the prosecutor's office. During the separate interrogation of Mrs. Pickles by the investigating detectives she said at first that Michael had fallen into the habit of wetting himself and having bowel movements in bed at night as well as in his clothes during the day. This produced urine burns beginning around October 4, or perhaps earlier, which she and her husband tried to treat at home with boric acid paste and solutions, vaseline and salves, until the burns worsened into the condition revealed at the hospital. Then after further questioning she allegedly sobbed out the statement that she had become irritated because of Michael's toilet habits and put him in hot water to punish him. According to the court matron who was present, Mrs. Pickles said: "I put him in hot water. I wanted to correct him." Admissibility of this statement will be considered fully hereafter
It is not necessary for present purposes to recite in detail the evidence adduced by the State on the manslaughter count of the indictment. It is sufficient to say the proof was adequate with respect to the alleged conduct of Mrs. Pickles in causing the child's burns, as well as to her failure to obtain medical treatment for him until the evening of October 9, to warrant submission of the issue of manslaughter to the jury. See State v. Weiner, 41 N.J. 21, 26, 43-45 (1963); State v. Watson, 77 N.J.L. 299 (Sup. Ct. 1909); People v. Edwards, 42 Misc. 2 d 930, 249 N.Y.S. 2 d 325 (Cty. Ct. 1964); State v. Mally, 139 Mont. 599, 366 P. 2 d 868 (Sup Ct. 1961); 1 Wharton's Criminal Law and Procedure, §§ 296, 298 (12 th ed. 1957); Annotations, 10 A.L.R. 1137 (1921); 100 A.L.R. 2 d 483, 498-502 (1965); cf. State v. Beach, 329 S.W. 2 d 712 (Mo. Sup. Ct., 1959); Craig v. State, 220 Md. 590, 155 A. 2 d 684 (Ct. App. 1959).
In this connection note may be taken of Stehr v. State, 92 Neb. 755, 139 N.W. 676, 45 L.R.A., N.S., 559 (Sup. Ct. 1913), affirmed 94 Neb. 151, 142 N.W. 670, 45 L.R.A., N.S., 563 (Sup. Ct. 1913). There the defendant was convicted of manslaughter in connection with the death of his stepson who was about four years old. The child, who lived with his mother and stepfather, was afflicted with bedwetting and because of it the stepfather was in the habit of punishing the child frequently and quite severely. On December 31, 1910 a blizzard occurred and that night the weather was very cold. Stehr allowed the fire to go out, although he had a small supply of coal. Sometime during the night he discovered that the boy had wet his bed; that the bedding was frozen stiff; that the room was full of frost; that snow had drifted through a crack in the door and through a broken window pane. Notwithstanding this situation defendant did not build a fire; he turned the mattress over on which the boy was sleeping and placed him back in the bed alone, where he lay until the next morning. About five days later it was discovered that the child's feet had been frozen and had begun to show signs of discoloration. Mrs. Stehr said the child's feet
looked gray and somewhat green in spots. Defendant then applied hot water and dressed the feet with cloths saturated with vaseline. No physician was called until January 16, at which time the child's feet were so badly decomposed that the stench from them had become unbearable. Two doctors were then consulted who declined the case because defendant had no money. One recommended the city physician who came in, made an examination and informed defendant amputation was absolutely necessary because of the gangrenous condition of the feet. The operation was performed but the sepsis had developed to such an extent that recovery was impossible and on January 22, the child died.
Defendant who was charged with manslaughter defended on the ground that he was an ignorant German, unable to speak English, and was without means to procure medical assistance. The conviction was affirmed, the court saying that in view of what Stehr admitted he saw about the child's condition, it was "idle to assert that he was so ignorant as not to realize the necessity for calling a physician." The court noted also that although neither defendant's earnings as a day laborer nor those of his wife who took in laundry work, were very substantial, this fact would not excuse him. In such case if he was unable to supply medical attention, his duty was to take advantage of the poor laws by reporting the case to the public authorities for their relief. Under the circumstances the court held it was for the jury to say whether the degree of failure of defendant to perform his duty toward the child was criminally culpable.
It was with respect to the proof of the neglect count against both Mr. and Mrs. Pickles that the difficulty arose, which in our judgment makes retrial of the case necessary. If the charges had been confined to the circumstances originating with the alleged bath in hot water on or about October 4, 1962 and the failure to obtain medical treatment thereafter until the child appeared to be in extremis, the issues to be determined could have been sharply defined and contained. As to Mrs. Pickles the criminal charges would have been (1)
whether in placing her son in the hot water to punish him, as the result of which he died, she was guilty of criminal conduct constituting manslaughter; (2) whether in view of her knowledge of the child's condition after the bath, which she gave to punish him, and her duty to provide medical attention, her failure to obtain such attention for him warranted a jury finding of manslaughter, or (3) whether, even though there was no criminal conduct by her in the giving of a bath, she knew the child's condition was such thereafter that medical attention was required and her failure to obtain it constituted conduct of such a reckless or wanton character as to indicate an utter indifference on her part to the life of her son.
The neglect count against both parents, although inartistically drawn, having in mind the nature of the State's case, is clear cut enough if confined to the two situations which are at the core of the prosecution, i.e. (1) as to Irene Pickles: The placing of the child in hot water thus inflicting serious bodily burns on him, and the failure to solicit competent medical treatment for approximately one week thereafter; and (2) as to Calvin Pickles: Neglecting "third degree burns on the body of his son Michael, to the point of early gangrene before seeking medical treatment by a competent physician and permitting him to be treated at home, without first consulting a doctor." This part of the indictment is based upon N.J.S.A. 9:6-1 which defines cruelty, among other things as "(d) any willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child." Neglect is defined as "(a) willfully failing to provide proper and sufficient food, clothing, maintenance [and] * * * medical attention or surgical treatment, * * * or (b) failure to do or permit to be done any act necessary for the child's physical or moral well-being."
It should be noted here that the neglect charge against Mrs. Pickles (as shown by the State's bill of particulars) is the same factually as the manslaughter charge, except for the
allegations relating to her conduct toward Michael between September 1 and October 4, 1962. Undoubtedly the thesis of the State in this connection was that the jury could find that the circumstances in their totality were not sufficiently criminal in nature to constitute manslaughter, but were sufficient to establish criminal neglect within the meaning of the statute. N.J.S.A. 9:6-3.
But in the neglect charge against Mr. Pickles no allegation is made that he knew Mrs. Pickles had put the boy in hot water. The charge is simply that he failed to seek prompt and proper medical treatment for his son's "third degree burns." Thus, trial of the alleged statutory violation against Mr. Pickles could be had without reference to any criminality in connection with the manner in which the child sustained the burns. Moreover, a separate proceeding devoted solely to the issue of Mr. Pickles' guilt would avoid the serious problem of prejudice arising against him as a result of his wife's alleged admission that she put their son in hot water to punish him.
As we have said, if the time periods involved in the charges of manslaughter and neglect were both fixed as beginning October 4, the date of the alleged punitive bath (assuming it was proper to try the charges or the defendants in a single trial), then the issues would be clear and compact. But when the time period for the neglect charge is extended back to September 1, 1962, so as to include alleged additional acts of neglect unrelated to the child's burns and the failure to obtain competent treatment, the possibility of prejudice to both defendants, but particularly Mr. Pickles, from a joint trial becomes evident.
Let us look at the evidence offered as to acts of neglect of Michael between September 1 and October 4, the date of the hot water immersion as claimed by the State.
The defendant Irene Pickles was 24 years of age when the events occurred for which she was indicted. She had been married to Calvin Pickles for seven years, had three children, and was pregnant at the time with her fourth child. In October
1962, Thomas was six years old, Michael, the decedent, was four, and Robert was three.
The State called Mrs. Theresa Principato as a witness on the subject of neglect. She lived next door to the Pickleses and was obviously hostile to them. She had a seven-year-old son who did not play with the Pickles children very often. Her son, Anthony, and Thomas, the oldest Pickles child, fought at times she guessed "over toys." She and her husband were friendly with the Yannettes who lived immediately to the rear of the defendants. At the request of the Yannettes, her husband put up a fence along the rear line of the Yannettes' and the Pickleses' lots. The Yannettes wished to leave a gate in the fence to enable them to walk over the Pickleses' property to visit the Principatos. The Pickleses consented and then apparently the fence was put on the Pickleses' lot ten feet beyond the Yannettes' line. This was "a mistake" according to Mrs. Principato. The plain inference is that the encroachment caused difficulty.
Mrs. Principato testified that during a period between six weeks and two months prior to the time Michael was taken to the hospital (the time being fixed by the assistant prosecutor), she saw the Pickles children playing around their house. At times she heard the children "just call 'Mommy'" and Mrs. Pickles would never come to the window or open the door for them. She did not say where she was when she heard the call, nor did she say anything to indicate Mrs. Pickles heard or could have heard the call. From the call "Mommy" she assumed they wanted to go to the bathroom because thereafter she noticed the younger children wet themselves, following which they would remain outside for two or three hours in their wet condition. She conceded, however, the doors of the Pickles home were unlocked; she saw the children go in and out, but she endeavored to give the impression that although Thomas, the six-year-old, was able to open the doors, the two younger boys might not be able to reach the door knob. She saw Thomas go in the house without ringing the bell. In this connection another State's witness, Mrs. Barbara Schwartz,
testified that on her visits to the Pickles home she saw the three children come in and out of the house, opening the doors themselves.
Mrs. Yannette, the neighbor to the rear, was called by the State. Having had her attention directed to the period between September and October 1962, she said she noticed the Pickles children about 100 feet away playing around their house. She gave a paraphrase of Mrs. Principato's testimony, saying: "Well, the two smaller children I used to see them go to the door, and that they had to go to the bathroom but I never saw any response; and then they would wet their pants and sit there and play for two or three hours." She could not say how many times she saw this in September and October 1962, but it was not "too often." It was obvious from her testimony also that some problem had arisen with the Pickleses over the gate the Yannettes wanted to put in their rear line fence.
Presumably the proof just outlined was designed to support the allegation in the bill of particulars that the defendants' children "were often refused use of the bathroom in the house; consequently they wet their pants, all to the knowledge of Calvin Pickles" and "Irene Pickles." It falls far short of proof of such knowledge on the defendants' part, and provides no evidence of criminal neglect. But it was capable certainly of introducing an aura of prejudice into ...