For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
This appeal is from a judgment of conviction of first degree murder. Since the State had waived the death penalty, the jury's verdict recommended life imprisonment and that sentence was imposed. N.J.S. 2A:113-4.
The prosecution arose from the shooting of defendant's foreman, George Muccigrosso, in the parking lot of their employer, a frozen food packing company, in Winslow Township,
Camden County. At the trial there was no dispute that the victim was killed by shots from a revolver in defendant's possession. The State's position was that the evidence and legitimate inferences therefrom demonstrated an unlawful killing which was premeditated, deliberate and willful. N.J.S. 2A:113-2. The defendant claimed not only that the proofs failed to make out a sufficient case of these requisite components of murder in the first degree, but also that the discharge of the gun was accidental and therefore the killing was "by misadventure" and guiltless under N.J.S. 2A:113-6.
At the end of the State's case, the defendant moved for a judgment of acquittal of the first degree charge on the basis of absence of proof of the three special elements of that offense. The motion was denied and that action is asserted here as a ground for reversal. The motion also sought dismissal as to second degree murder for want of proof of intent to kill or to do grave bodily harm; it is now conceded, however, that the prosecution did make out a prima facie case of that crime based upon homicide with a deadly weapon. The court left second degree as well as first degree murder to the jury as permissible guilty verdicts. After the verdict, defendant moved for a new trial on the ground that the jury's finding was against the weight of the evidence, urging that, on the whole case, the state of the proofs as to first degree murder and the defense of accidental shooting was such that the jury's verdict has to be said to be the result of mistake. The denial of this motion is also claimed to constitute reversible error. The further points defendant makes also relate to alleged trial errors, including the refusal to charge certain requests dealing with the accidental shooting defense.
Treating first of the motion at the conclusion of the prosecution's evidence, the broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. R.R. 3:7-6. More specifically, the question the trial judge
must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Fiorello, 36 N.J. 80, pp. 90-91 (1961), certiorari denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2 d 396 (1962).
The trial court did not decide the motion by applying this test, but rather, in line with the prosecutor's argument at the time, ruled that the matter of the degree of homicide is a question of fact for the jury. This was an erroneous approach, but if denial would be correct on application of the proper standard, the action should be affirmed. (The defendant makes no point here of the improper basis of decision below and the State does not seek to justify the denial of the motion on the basis urged there by the prosecutor). In such a situation, the obligation of a reviewing court is to consider the State's proofs from the proper standpoint and determine therefrom how the motion should have been decided. In so doing, under the current state of our law, no consideration may be given to any evidence or inferences from the defendant's case. State v. Fiorello, supra, 36 N.J., at pp. 86-87.
The State's evidence may be summarized as follows:
The defendant was a general laborer at the factory. According to Juan Pagan, a fellow employee, the two had previously talked about going to Florida to work. On November 4, 1964, the day before the shooting, Pagan asked the defendant while they were at work to go with him then. Defendant agreed and they left the plant in his car about 8:30 A.M., walking off their jobs without telling anyone. They proceeded to their respective homes, obtained clothing and started for Florida via Philadelphia. They lost their way in that city and the defendant became worried about his wife, so they returned home. Pagan went back to work the next morning because Muccigrosso sent a message
through the witness' sister that he was to do so. Between 6 and 6:30 that morning, he met the defendant in the plant lunchroom who told him that he was going to change his clothes to a work uniform and go to work too. Pagan did not see defendant after that conversation. He gave no testimony that defendant said he had received a similar message to return to work and nowhere in his testimony was anything said about a gun.
The assistant plant manager, Howard Daltry, testified that on November 4, Muccigrosso advised him that defendant had not returned to work from a coffee break and that later in the day he removed defendant's card from the time clock rack and replaced him with another laborer. He stated that removal of the time card was required practice when an employee walked off the job, but he did not thereby discharge the defendant. Both he and Muccigrosso had the power to discharge.
Daltry was the principal witness with respect to the shooting. He said that he drove into the plant parking lot about 6:40 A.M. on November 5 and was followed by Muccigrosso in his car. Both parked and started to walk separately to the plant entrance door. The defendant then pulled into the lot alone in his car, although his wife, who also worked at the plant, generally came with him, and stopped near where Muccigrosso was walking. The import was that the defendant had followed Daltry and Muccigrosso into the lot from the highway. The latter went over to defendant's car and stood outside the driver's door. He then called to Daltry: "What about this fellow?", to which Daltry replied: "As far as I know, he is discharged", and continued walking toward the entrance. Three shots rang out almost immediately, Muccigrosso came staggering toward him crying that he had been shot, and the defendant speedily backed his car ...