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 Francis, J.
[49 NJ Page 478] The Essex County Grand Jury returned an indictment against the defendant Jasper Lowery charging that on April 14, 1965 he willfully, feloniously and of his malice aforethought murdered Thomas Bennett. More particularly, the State claimed that Bennett was killed by a shotgun blast fired by Lowery from a front window of his third floor flat at 123 Sherman Avenue, Newark, N.J. After the trial, which concluded on March 30, 1966, a jury found him guilty of murder in the second degree, whereupon the trial court sentenced him to fifteen to twenty years in New Jersey State Prison. Lowery then appealed directly to this Court under R.R. 1:2-1(c), alleging a number of trial errors as grounds for reversal of the conviction.
There was very little dispute at the trial about the basic facts of the homicide. The verdict of second degree murder was clearly justified; actually one of first degree would have been within the boundaries of the proof. On this appeal defendant does not complain that the determination of the jury is contrary to the weight of the evidence. Under the circumstances, detailed discussion of facts is not necessary; a general outline seems sufficient.
Defendant Lowery was 48 years of age at the time of the fatal shooting. He had been living at 123 Sherman Avenue, Newark, N.J. with his wife, 18-year-old daughter and a son 17 months old, for about eight months on April 14, 1965. The building is a three story frame tenement with a front stoop facing Sherman Avenue. Alfred C. Miller and his family occupied the first floor, the second floor was unoccupied, and Lowery was the third floor tenant. The neighborhood was described by police officers as a trouble area.
On April 14, 1965 between 9 and 10 P.M., Miller, his wife and two children returned home. On arrival they found five persons, four men and a young woman, sitting on the steps of the front stoop. They had been drinking. Miller asked them to move so he and his family could enter. Four of them did so; one refused profanely and told Miller to "move" him. He was Thomas Bennett, 20 years of age, who was later shot by Lowery. Miller took up the challenge and the two men tussled briefly before other persons intervened. During the encounter the front door glass was broken and one of Miller's legs sustained a gash. When the encounter ended, Bennett threatened Miller, saying, "I am going to get you. I am going to kill you." One of the other members of Bennett's group was encouraging him to "get" Miller. The Millers went into their apartment and a few minutes later a bottle was thrown through one of the front windows. Mrs. Miller then called the police, who responded in a short time, but the rowdy group had disappeared. The police departed after promising to check again in an hour.
Lowery was neither present nor in any way involved in the fracas. He was in his third floor apartment at the time with his wife and children. He was aware of the five persons on the front stoop drinking wine, and on hearing the altercation he looked out the window and saw the scuffle between Miller and Bennett. When the police arrived he called out to them the direction in which the young men had run. According to Miller, Lowery came downstairs and asked if he needed any help. Miller had to report for work at 11 P.M. and requested Lowery to keep an eye on his family. Lowery testified that a little later he saw the "gang" gathering again, so he went downstairs and asked Mrs. Miller if she wished to come up to his apartment with her children; she declined. He started back upstairs and, remembering he was out of cigarettes, called up to his wife that he was going out to get some. As he went out the front door, he said, two of the men, who were near a Miller front window, shouted something unpleasant at him, which indicated they thought he was Miller. At this time there were other men across the street also. He turned back into the house as some bottles were thrown.
Some inconsistency appears in the testimony at this point. Mrs. Miller, who obviously was kindly disposed toward Lowery, testified that after he left her she heard his foot-steps going upstairs and 30-40 seconds later heard a shot. She testified also that, just after Lowery left her flat, she heard someone say "I am going to kill you. I am going to get you." Whether Lowery or someone else made the statement, she did not know. Her husband also testified that as he left for work, someone said "We'll burn him out." Another witness for the State, a cousin of Bennett, asserted that he passed the stoop about a half-hour before the shooting, and heard Lowery, who was on the stoop, say to an unidentified person, "If he'll come back, I will shoot him." In any event Lowery said he went up to his apartment, took out a 12 gauge shotgun, which he had had for some years, and loaded it. He was an experienced hunter, and held a New Jersey hunting license.
The sequence of events after the loading of the shotgun is in conflict. Lowery testified that he went down to the front door with the gun hoping to frighten the young men away. He said he had no intention of shooting anyone. As he opened the front door, stepped out and said something to the men, a bottle or bottles were thrown at him. He raised his arms or ducked to avoid being hit and the shotgun went off. He ran back upstairs to his apartment, looked out the window and saw a man across the street on his knees. Then, at his request, his wife called the police. Before the police arrived, he disassembled the gun, returned it to the case and put it under the mattress of a daybed.
When the officers appeared they found the body of Bennett lying in a pool of blood on the Sherman Avenue sidewalk diagonally across the street from 123 Sherman Avenue, Lowery's apartment. The distance from his third story front window to the point across the street where the body was found was 76 feet, 2 inches. There was no blood in front of Lowery's house, nor any trail of it across the street to where Bennett lay. The county physician found seven severe shotgun wounds in Bennett from the head downward, and expressed the opinion that when hit the victim "fell down like a ton of bricks," and death was "almost instantaneous." The doctor testified also that the angle at which the pellets went into the body indicated that the shot was fired from above, downward at a 40-45 degree angle.
Two Newark detectives, Freid and Bostic, who came to the scene at about 10:40 P.M., took up an immediate investigation of the area. Freid found a shotgun shell casing in front of 123 Sherman Avenue, about one foot in from the curb. On entering the building he spoke to Mrs. Miller and then he and Bostic proceeded to the third floor to see Lowery, whom Freid knew. Lowery appeared upset and perspiring, and on inquiry admitted owning a shotgun but denied knowing anything about the shooting. The gun was soon found disassembled under the daybed mattress. Freid said the barrel was still warm, indicating, he told Lowery, that it had been fired a
very short time earlier. Lowery then said he had gone out to tell the boys to get off the stoop. Bennett came into the hallway after him and was about to throw a bottle at him when he fired the gun. At this time Bennett was at the first floor level and Lowery was either on the stairway between the first and second floors or had reached the second floor landing.
The detectives found no shotgun pellet marks or blood in the hallway or any blood in front of the building or in the street between the building and the place across the street on the sidewalk where the body was lying. When these facts were brought to Lowery's attention, he changed his story and said the person shot was in the street. Lowery was brought to police headquarters and agreed to give a statement, which was begun about an hour after the officers arrived at the scene of the shooting. This statement added another version of the shooting incident. In it Lowery said that when he opened the front door of his building to go out for cigarettes, Bennett threw a bottle at him, breaking the storm door. Then he threw a bottle or a brick through the Miller front window, and started after Lowery with a knife in his hand. Lowery ran upstairs, into his apartment and came out again carrying the gun. Bennett was in the first floor hallway cursing. When Lowery was on the stairway between the second and first floors, Bennett "started" at him again with the knife in one hand and a bottle in the other. He threw the bottle at Lowery, who fired his gun wanting "to shoot over his head" but, in attempting to duck the bottle, hit Bennett. He "didn't mean to shoot" Bennett, whom he did not know at all. (The police found no knife on or near the body.)
The State produced two witnesses to the shooting. One, Willie Stewart, a cousin of the victim, and the other a friend, Robert Thompson. From their testimony it appeared that, after the fracas involving Miller, Bennett and others (including Stewart and Thompson) went to a nearby restaurant. Thereafter Bennett left with one Phillips (who did not testify), and Stewart followed with Thompson. According to Stewart, when Bennett reached the corner of Miller Street
and Sherman Avenue Stewart heard a shot and saw Bennett, who was facing 123 Sherman Avenue, collapse on the sidewalk. Looking toward that building, Stewart saw ...