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 Weintraub, C.J.
Ralph Davis was convicted of murder in the first degree and sentenced to die. We reversed the judgment because there had been comment upon his failure to testify, in terms forbidden by the opinion handed down thereafter in Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2 d 106 (1965). State v. Davis, 45 N.J. 195 (1965). The retrial resulted again in the imposition of the death sentence. Defendant appeals directly to us pursuant to R.R. 1:2-1(c).
The State tried the case upon the thesis that the killing occurred during a robbery. On January 25, 1963 the deceased, Leon Hanjian, a rug merchant, was murdered at his store on Morris Avenue, Elizabeth, New Jersey. The essential facts in the State's case were undisputed, and at this juncture we need only summarize them. Seven witnesses placed defendant at or in the general area of the store at a time consistent with guilt. The unusual deformity of defendant's right leg apparently attracted attention to him. When apprehended less than two hours after the shooting, he had on his person the wallet of the deceased and the gun which, according to the State's proof, fired the fatal shot. There was human blood at the cuff of his trousers, on his jacket, and on his coat. The bloodstain on the trousers, the only one that could be typed, was found to be of type O, and although the blood of both defendant and deceased was of that type, there was no break in defendant's skin to suggest the blood was his. On the way to police headquarters after his apprehension, defendant volunteered to the detectives that the
driver of the car in which he was captured "didn't have anything to do with it."
The defense introduced evidence of defendant's general background. It produced expert testimony that no opinion could be reached either way upon the question whether the gun was the fatal weapon. It proved that the gun was bought by Edward Warren Bernard, a friend of defendant. Bernard, originally held as a material witness, could not be located for the trial. Defendant's sister testified that defendant lived with her in Linden, and that on the day of the crime Bernard and defendant left her apartment together sometime between noon and 1 P.M. This time estimate was not inconsistent with defendant's guilt, and there was no evidence placing Bernard near the scene of the crime. Defendant did not testify.
After the reversal of the first conviction, defendant for the first time moved to suppress the articles taken from him at the time of his arrest. His motion was denied. He challenges that ruling.
The facts are these: At about 12:50 P.M. a lady next door to the store heard a "loud banging sound," which probably was the report of the fatal shot. At 1:25 P.M. a customer entered the store and found the deceased on the floor, unconscious. A bullet had passed through his head, the point of entry being above the right ear. The customer telephoned the police, who responded at once. At 1:32 P.M. Officer McGuire, directed by his superior to canvass the neighborhood for information, interviewed Miss Hivick, who lived directly across the street from the Hanjian store, and learned from her that at 12:52 P.M. she saw a man coming down the walk leading from the Hanjian store entrance to the public sidewalk. He had his right hand in his coat pocket. He had a pronounced limp. She gave the officer a description which he immediately relayed to Elizabeth police headquarters. In turn, the Elizabeth police asked the State Police at Newark
to issue a teletype alarm. The teletype message went out at 2:13 P.M. to some 200 local police headquarters, including those of Roselle and Linden. It read:
"Wanted for Murder. Colored man, age unknown, 6 feet 1 inch, slim build, good looking, walks with a limp. Black, 3/4 length coat, raincoat; black fedora hat, black pants, white scarf. Owner of drug*fn1 store was found shot this city -- occurred 13.27 date -- has since expired."
The Roselle police department relayed this message by radio, and its officers, Dixon and Pogue, riding in their patrol car, agreed at once that the description matched defendant. Upon receiving the report, Deputy Chief Radecki of that department immediately ordered defendant picked up for questioning for this murder, for Radecki had seen defendant the day before and recalled that defendant's garb was that described in the teletype alarm. Radecki, Dixon and Pogue knew defendant had recently been released from State Prison. Upon receipt of Radecki's order, Dixon and Pogue began to patrol areas frequented by defendant.
At 2:45 P.M. Dixon and Pogue spotted defendant in a car driven by Al Myers at the intersection of Paul Street and St. George's Avenue. Dixon stopped the Myers car, and since it was in Linden just over the Roselle line, he asked Myers to move the car across the street. Myers declined. Dixon told defendant that Radecki wanted him for questioning, to which defendant answered that "If Radecki wants me, tell him to come to my house for me." Dixon replied that he would book defendant in Linden, and sent a call for aid.
Detective Laukaitis of Roselle arrived quickly and told defendant he was under arrest for murder on the strength of the teletype message. Detectives Eichhorn and Novalany of the Linden police department came shortly thereafter. Eichhorn also told defendant he was under arrest for murder. Defendant was ordered to leave the car with his hands down,
and as he did so he either lunged at Laukaitis or fell toward him because of his severely crippled leg. Laukaitis reacted by raising his hands to push defendant away, and as his hands contacted defendant's chest he felt a hard object he recognized as a gun. With the help of another officer, Laukaitis removed the weapon, and as he did, a knife fell to the ground. The gun later proved to be the murder weapon according to the State's ballistic proof. Defendant was immediately taken to the Linden ...