For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the Court was delivered by Schettino, J.
Defendant appeals as of right, R.R. 1:2-1(c), from a judgment of conviction of murder in the second degree and a sentence of 15 to 20 years in the State Prison. He was indicted under a short form murder indictment by the Mercer County Grand Jury for the killing of one Anita Folk of 143 South Stockton Street, Trenton.
The victim, an ex-girl friend of defendant by whom she had a child, was found on Sunday morning, November 10, 1963 by Ethel Hankins, who lived in an apartment adjacent to and to the rear of Anita's. In fact, the rear entrance of Anita's apartment opened into Ethel's so that anyone who desired to gain entry to Anita's apartment from the rear would be required to pass through Ethel's. It was Ethel's custom to go into Anita's apartment each morning and have coffee with her. According to her statements to the investigating officers and at the trial, on this particular morning she called for Anita and, receiving no response, went in through the open kitchen door. She found Anita lying on her bed, clad in a slip, appearing to be unconscious. Ethel then called Mildred Jackson, the defendant's sister, who lived in a second floor apartment in a building adjacent to Anita's. Both were unsuccessful in rousing Anita and thereupon called the police.
When they arrived, the officers found the lock to the door of Anita's apartment had been broken, the door bearing evidence
that it had been forced open. They also found both on and near the bed a man's belt which appeared to be slashed and cut.
Questioning of Ethel and Mildred brought out the following information from them. Ethel stated that Anita had come in through her apartment at about 6:30 or 7:00 P.M. the night before. She was accompanied by a man whom Ethel could not identify. She was not sure of his description, as she stated she was in bed at the time and had not had a chance really to get a good look at him as Anita and he merely passed through.
Mildred told the police that at about 9:00 P.M. she was playing cards with a friend, Hilda Patman, in a second floor apartment at the Stockton Street residence when she heard someone calling from the first floor asking her to come down to Anita's apartment. Mildred went to Anita's apartment and found Anita crying. She testified that her brother, the defendant, was there, that defendant "smacked" Anita but that when Mildred asked them if they were fighting, both said "no." She saw Anita headed toward the bathroom crying. Mildred said that that was the last she saw Anita alive. She testified further that it was Arthur Hames who she knew was with defendant who had called her to come down.
An autopsy was performed that afternoon by Dr. Mathew Lapin, a deputy Mercer County physician, who determined that the cause of the death was due to a subdural and subarachnoid hemorrhage of the brain. Dr. Lapin testified that such hemorrhages are normally caused by an external force accompanying a blow to the head. Dr. Lapin was further of the opinion that the hemorrhage was recent, and that death had occurred within 30 minutes to an hour of the time of the causal blow.
Defendant was apprehended that same Sunday evening at 6:00 P.M. He denied any implication in Anita's death and gave the police a written statement that evening. In the statement, taken in narrative form, he claimed that he had seen Anita that Saturday afternoon outside a tavern, that he
questioned her concerning a swelling and bruise on her head and that she told him to mind his own business. He denied being at Anita's apartment that Saturday night. On the following Tuesday, he gave a second written statement to the police in which he stated that his first statement was untrue, that he had been to Anita's apartment at approximately 8:30 P.M. or 9:00 P.M. on Saturday night and that he had slapped her. He claimed however, that when he left that night she was in good health and had gone to bed.
The State's principal witness at the trial was Arthur Lee Hames, the defendant's companion on that Saturday night. He testified that he and the defendant were drinking together at Scottie's Bar on Stockton Street and that at about 8:00 P.M., the defendant suggested going over to Anita's house, and Hames agreed. The defendant left about five minutes ahead of Hames. Upon his arrival there, Hames found the door "busted" open and went in, and saw the defendant standing over the bed brandishing a knife at a man later identified as Harold Warren who was in bed with Anita. At the moment of Hames' arrival, Warren jumped up and was chased out of the apartment by Hill. Hames said he followed Hill after Warren for a short distance.
Shortly thereafter both returned. Hames went into the hall to call Mildred telling her that defendant and Anita were fighting. When he re-entered Anita's apartment, he said he saw Hill kick Anita in the neck while she lay in bed and that when Anita started getting up Hill hit her over the head with a chair. Anita screamed and began to cry and at that moment Mildred appeared. Then Hill "smacked" Anita on the side of the face.
While Mildred helped Anita into the bathroom, Hill began to slash and cut up Warren's clothes. Hames testified that at this time one Lena Jones entered and took Warren's coat upstairs to Mildred's apartment. At this point Hames left, leaving Hill then standing next to the bed to which Anita had returned. His last view of Anita alive was while she was in bed crying.
Warren testified that he had met Anita that afternoon and the two had made the rounds of various local bars, finally returning between 6:00 and 7:00 P.M. to Anita's apartment entering through the rear apartment. Warren claimed that he and Anita each had a beer a piece, went to bed, and thereafter fell asleep and that the next thing he remembered he was being slapped awake by Hill. Warren further stated that Hill brandished a knife at him and being afraid he ran out of the apartment clad only in his shorts and undershirt. He identified the cut-up belt as his and also the coat which was turned over to the police by Lena the next day.
Another witness for the State, Hilda Patman, the defendant's girl friend at the time of the incident testified that she was with Mildred when they heard the screams from downstairs. When she reached the stairwell, she saw a man run out of Anita's apartment clad in his shorts being chased by Hill. She also testified that she found a bloody handkerchief on her bureau. She said that apparently Hill had put it there. This handkerchief was subsequently put in evidence.
The defendant took the stand in his own behalf. Although the State did not in its case refer to any statement given by the defendant, defendant nevertheless opened the subject. He testified that the first statement he gave to the police was involuntary and untrue but he claimed the second statement where he admitted slapping Anita was true. Although he agreed with Hames' testimony in most particulars, he denied ever kicking Anita in the neck and also hitting her with the chair. He claimed that he chased Warren for the ...