For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Schettino. For affirmance -- Justice Francis. Francis, J. (dissenting).
Defendant was indicted for the murder of Solomon Hutchins. The jury returned a verdict of manslaughter, and defendant appeals directly to us from the judgment of conviction. R.R. 1:2-1(c).
Hutchins and his wife ran a small grocery store on Prince Street in Newark. Defendant was one of several persons who on the day of the homicide played at cards with Hutchins in a room behind the store. Following a dispute between them, Hutchins ordered defendant to leave. Defendant did. Mrs. Hutchins testified it was then about 10:00 P.M.; that about 11:00 P.M. defendant returned to the store; that, hearing a commotion, she went to the front and saw her husband lying on the sidewalk with defendant striking down at her husband and her husband attempting to strike back with a wooden shovel handle. Hutchins died within a matter of minutes. He had been stabbed with an ice pick. There were four wounds, one in the left side of the chest to a depth of four inches, another in the right side of the lower abdomen to a depth of 5 1/4 inches, and two in the right side of the upper abdomen to a depth of about one inch.
The police arrived quickly and went with Mrs. Hutchins to search for defendant. Defendant was found at his home. He had injuries to his left hand, left elbow, and head. He explained to the police that he had fallen down a flight of stairs. He was removed to a hospital where it was found that the elbow was fractured. Upon his release from the hospital some 12 days later, he gave the police a written
statement in which he said that Hutchins had attacked him with a club, that in defense he spun Hutchins to the ground, and stomped on him with his foot. The statement was thus wholly exculpatory, but it hurt defendant because of the obvious conflict with the undisputed fact that Hutchins was stabbed.
At the trial defendant testified that as he left the store, Hutchins suddenly belabored him with the shovel handle; that reaching for a knife he in fact did not have on him, he felt and drew an ice pick which he had found a week before and had forgotten about; that he did not believe he stabbed Hutchins; that on his way home, he discarded the weapon. It was not found.
On this appeal, defendant complains of the admission of the oral statement to the police concerning how he was injured and of the admission of the written statement referred to above. Defendant also charges the prosecutor with alleged improprieties. We find no substance in any of these points. On the record of the trial, the conviction is in all respects proper and the judgment should be affirmed.
Defendant, however, raises for the first time upon this appeal a charge of racial bias. Defendant is a Negro and so also was the deceased. Counsel for defendant sought to inquire on voir dire whether the jurors held any prejudice against Negroes. His approach was quite indirect; he explained that he was trying to probe the "subjective state" of the juror's mind. The stenographic record, as certified by the shorthand reporter, reads in part:
"THE COURT: I cannot understand what difference it would make if he had any social relationship with a Nigger, or if he lives within three blocks of a Negro. How can that show prejudice? I cannot see any sense in that.
MR. FRANZONI: Your Honor, whether or not he has prejudice against Negroes in general is a subject matter that may be in his own mind.
THE COURT: I understand that, but the question of whether he has ever been to a socal occasion with a Negro or how close he happens to live to a Negro, it seems to me has very little, if anything, to do with it." [47 NJ Page 289] The complaint revolves about the word "Nigger." That word appears nowhere else in the record. We asked the trial judge to certify whether the transcript is accurate and he replied that he is morally certain that he did not use that word.*fn1 There was no objection by counsel at the trial, or thereafter when he made a motion for a new trial. The record repels any suggestion of prejudice. In fact, no other juror was present during the interrogation in question, and the juror then being examined was not seated in the case. The trial itself was completely fair. Indeed the trial court was most patient with the defense, which from time to time was unable or unwilling to abide by its rulings. The prosecution, too, handled the case commendably. We note, in support of that observation, that when defense counsel undertook to bring out defendant's criminal record and was about to elicit items which the State could not have introduced against defendant, the prosecutor intervened to protect defendant and the trial court too ...