For affirmance and modification -- Chief Justice Weintraub and Justices Francis, Proctor, Goldmann, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
Defendant appeals from a judgment of guilty with a recommendation of life imprisonment on each of three indictments charging felony murder and from sentences of three concurrent life terms entered upon the convictions.
The testimony at the trial discloses that at approximately 1:45 A.M. on May 23, 1964 a fire swept through the kitchen of the home of Joseph Carlin at 226 Laurel Avenue, Kearny, N.J. The fire resulted in the deaths of the three Carlin children -- Daniel-14 years of age, Patricia-13, and Kathleen-10. Neither the mother nor the father was at home at the time of the conflagration. Both Mr. and Mrs. Carlin had jobs in Eagan's Restaurant in North Arlington, a short distance from their home. On May 22, 1964 Mrs. Carlin, having worked the luncheon shift, returned home after some shopping to prepare supper for the children. When the children were fed she left a sandwich on the kitchen table for her husband; cleaned the supper dishes and kitchen utensils; and left at about ten minutes to five to return to Eagan's to work from 5 P.M. to 2 A.M. She testified that when she departed from the Laurel Avenue home, the refrigerator was the only electric appliance plugged in; there was nothing on the stove; and the kitchen was tidy.
Mr. Carlin who had regular employment with the Prudential Insurance Company in Newark, worked part time as a bus boy at Eagan's Restaurant. On May 22, 1964, he arrived home from Newark at 5 P.M. He ate the sandwich
theretofore prepared by his wife; changed his clothes; and drove to Eagan's where he worked until 8:30 P.M. He had his supper and a couple of glasses of beer and drove home where he watched television with his daughters. His son Daniel was not home, being in attendance at a dance. Some time before 10:30 P.M. he began to feel tired and, fearing that he would not remain awake in order to pick his wife up upon the completion of her work, he went to a nearby tavern. At the tavern, Mr. Carlin played pool until about one o'clock at which time he was driven home by a friend. He found his son, who had returned from the dance, sleeping in his bedroom. The two girls were asleep in the room they shared. He checked the kitchen and TV room and found nothing unusual. He then left the house at 1:15 A.M. arriving at Eagan's at 1:25 A.M. The Kearny Fire Department received a call at 1:43 A.M. notifying them of a fire at the Carlins' home. At 1:50 A.M. Mr. and Mrs. Carlin were advised at Eagan's that their house was on fire.
When the firemen arrived at 226 Laurel Avenue at about 1:45 A.M. they found flames lapping out of the kitchen windows which had been blown out by the fire. Although the fire was largely confined to the kitchen the heat was so intense that the fire fighters at first could not gain entrance to the kitchen. The temperature was so high that a member of the rescue team could feel heat through his steel innersoled boots. Within three or four minutes of arrival most of the flames had been extinguished.
The girls were discovered dead in their bedroom. The boy was found badly burned, behind the front door. He died on May 29, 1964.
On May 23, 1964, defendant, an army veteran who had left school in the ninth grade, was 26 years of age. He, with a partner, operated a Sunoco gasoline service station located about 150 feet from the Carlin house. On the day in question, he opened the station at 7:00 A.M. and finished work around 3:30 P.M. He then went home and changed into a fresh Sunoco uniform -- blue slacks and blue shirt. He
proceeded to take a ride in his white Impala convertible, stopping at a Jersey City bar where he drank a few beers and shot pool for about an hour and three-quarters. He then went to the Midland Bar in Kearny, where he continued drinking beer and shooting pool until 6:30 P.M. At about 7:00 P.M. he arrived at the Ulster Club in Kearny where he stayed until some time after midnight.
According to his account, he was drinking beer the entire time with an occasional scotch. He was finally asked to leave the Ulster Club for making a fool of himself. Other defense witnesses testified that he was drunk when ejected from the Ulster Club at or about midnight. He then drove to his gas station and picked up his dog. From the station he went to the Snug Harbor Tavern, where he drank until just after 1:00 A.M. The bartender at the Snug Harbor Tavern testified that he was not intoxicated at one or one-fifteen A.M. when he left that tavern.
Up to this point there is not too much conflict between the State's and defendant's stories. The next portion of defendant's story, however, is diametrically opposed to that of the prosecution. He claims that he drove back to the gas station and decided to walk his dog around the block; he spotted flames while passing the Carlin house; ran to both the rear and front door and was unable to enter; he then ran to the gas station and turned in the alarm before returning to the scene of the fire.
The State, on the other hand, adduced the following testimony: A neighbor who lives directly across the street from the Carlins, a Mrs. Elizabeth O'Reilly, testified that at 1:30 A.M. while looking out of her living room window, she saw a white convertible pull up and park in front of her house. Defendant admittedly was driving a white Impala on the night in question. An unidentifiable male figure who was wearing a short-sleeved tan shirt, open at the collar, and dark trousers, got out of the car, crossed the street, ascended the Carlin porch, and tried the front door; he then came down the steps and disappeared onto the driveway alongside
the Carlin house. After about five minutes he reappeared and got back in the car. The man smoked for about a minute and then made a U-turn, parking in front of the Carlin house. He got out of the car and walked up and down the sidewalk in front of the house for a minute or two. The figure then went into a neighbor's yard, looking up toward the back of the Carlin house. He suddenly hurried to his car, got in, and sped over to the corner gas station -- turning in there. Mrs. O'Reilly immediately saw flames; she crossed the street, and stood ringing the Carlin doorbell. Shortly thereafter, a man came up and asked "what happened". This man was wearing a tan shirt and Mrs. O'Reilly identified him as the man who worked in the corner gas station -- the defendant, George D. Mills. According to Mrs. O'Reilly, defendant was greatly intoxicated and looked hysterical.
Another neighbor, Mrs. Patricia Symanski, testified that at about 1:00 A.M. she saw a white car park in front of Mrs. O'Reilly's and remain there for a couple of minutes. She noted that Mr. Carlin returned home about 1:05 A.M., remained talking in a car for approximately ten minutes and then went into the house for about five or ten minutes before driving away at about 1:20 A.M. After Mr. Carlin left, a white Chevrolet pulled up and parked in front of Mrs. O'Reilly's at about 1:30 A.M. Mrs. Symanski was watching television and did not notice anything further until the car made a U-turn and parked on Laurel Avenue, by the Carlin driveway. She then saw a man, whom she positively identified as defendant Mills, get out of the car. Defendant walked up and down the sidewalk, looking at the Carlin home; according to Mrs. Symanski, he was wearing a light jacket, closed at the top, and dark trousers. Defendant then got into his car and drove to the gas station at the corner. Mrs. Symanski saw flames and sparks coming out of the Carlin house almost immediately and ran to call the Fire Department.
While viewing the fire, another witness, Mrs. Ann Baumgartner, saw defendant standing in the Carlin driveway.
According to her testimony, defendant was not drunk and she could detect no odor of liquor on his breath. He was wearing a "beige windjammer -- a jacket with a zipper" -- which was open and not zippered.
Mr. Anthony Krazniewski, a grave digger in the cemetery where the three children were buried, reported seeing defendant on two occasions. One week after the burial, a man whom he identified as defendant went to the graves, knelt, and stayed for five or ten minutes. This person muttered, "Kathy, Kathy, Kathy" -- the name of one of the victims. Two weeks after the funeral, the same person made a similar visit.
Four written statements of defendant were introduced by the State. Two were non-inculpatory and defendant raised no objection to their admission. The other two, to the admission of which defendant objected, although not amounting to confessions of the commission of a crime, admit that defendant did enter the kitchen of the Carlin house through an unlocked rear door. Mills therein stated that after lighting a cigarette he flipped the match to the floor which burst into a blaze.
Upon defendant's request at the Kearny Police Station on July 1, 1964 for permission to consult a clergyman, he was visited by the Rev. Albert L. Beemer who testified that the defendant in his presence said to defendant's wife, between sobs, "You know that fire on Laurel Avenue. I did it."
The State presented three expert witnesses, all of whom concluded that the fire was of incendiary origin and that a propellant or accelerant had been used. These experts ruled out other possible causes of the fire, and based their conclusion of incendiarism primarily upon the ...