For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
At about 9:45 in the evening of May 4, 1964 Richard Lukasiak was severely beaten in the parking lot of the Red Eagle Tavern, Cherry Hill. Lukasiak who was six feet two inches tall and weighed 195 pounds, was taken by ambulance to the Cherry Hill Hospital and transferred from there to the Episcopal Hospital in Philadelphia, Pa. for special treatment. He expired at 6:45 A.M., May 5, 1964 without having regained consciousness.
Lester L. Gardner and Alfred Hicks were subsequently indicted for his murder. Hicks pleaded non vult to the charge of second degree murder before the trial of Gardner, who had pleaded not guilty. Gardner was convicted of second degree murder and sentenced to a term of 25 to 30 years imprisonment. Gardner appeals from both the conviction and sentence. Subsequent to filing his notice of appeal Gardner moved in this court for a remand to permit a motion
for a new trial grounded on newly discovered evidence emanating from appellate counsel's personal investigation which allegedly demonstrated a likelihood of perjurious testimony by a State witness. This Court held determination of that motion pending argument on this appeal.
The testimony on the trial was as follows: The driver of the ambulance which transported Lukasiak to the hospital testified that upon arrival at the parking lot at the Red Eagle Tavern in response to a telephone message, he found the deceased lying on his back bleeding from both ears and with bruises on his face and left cheek and a cut on the back of his head. Dr. Weston, a pathologist, and Assistant Medical Examiner of Philadelphia, performed the autopsy after Lukasiak's death at Episcopal Hospital. He testified that decedent died as a result primarily of injuries on the right side of his head inflicted with a blunt instrument. The other head injuries, including a cut on the back of the skull which was caused by decedent's fall, as well as kicks to the lower part of the body, were superficial injuries. He could not determine to what secondary degree, the other injuries may have contributed to his demise. Dr. Hoft of Episcopal Hospital testified from hospital records that the cause of death was a brain injury from a blow to the head.
The State's case as to the perpetrators of the assault revolved around the testimony of two alleged eyewitnesses who testified to seeing the defendant Gardner, while in the company of Alfred Hicks, strike the decedent with a stick of wood. The main witness was Herbert A. Kittredge who testified that he was at the time of the incident a groom working at Garden State Race Track where the defendant also worked. He testified that he had seen defendant, whom he knew by the nickname of "Pop-eye", at the Red Eagle during the evening of May 4, 1964. Kittredge stated that: He had come to the Red Eagle Tavern with his wife at noon that day, had lunch and about six beers. He then went to the track to complete some chores, leaving his wife at the tavern. He returned to the tavern at about 5:45
P.M. for dinner and had seven or eight more beers. At about 9:00 P.M. the decedent challenged and beat him at a game of pool. The bartender became annoyed at the fact that he and Lukasiak gambled, called the decedent a sharpshooter, and ordered repayment to Kittredge, who, however, sided with decedent in the dispute. As a result of the controversy, the decedent left the Red Eagle in the company of Kittredge, to whom he had offered a ride home. Kittredge, with his wife lagging behind to say goodbye to other customers in the tavern, followed the decedent. Decedent made a right turn on leaving the tavern, going toward its parking lot. When the witness arrived outside, the decedent was 25 to 30 feet away. Two men were waiting at the rear of a car in the parking lot with sticks in their hands approximately two and one-half to three feet long. As the decedent approached them, the smaller of the two struck the decedent over the head knocking him to the ground. The two proceeded to kick the decedent in the head and shoulders. Kittredge rushed between the two assailants and for the first time saw Hicks' and Gardner's faces. Hicks swung a stick at him, hitting him on the wrist, and also hit his wife on her hand and face. Hicks, and then Gardner, ran away. He was able to tell who struck decedent only by the height difference of the two assailants, Gardner being the shorter. Kittredge then ran back to the tavern and told the bartender of the fray. The latter after viewing the prone decedent called the police and the ambulance. Kittredge waited for the Cherry Hill police. He gave a statement and deposition concerning the events on May 5, 1964. The witness stated that he had not seen any dispute between the decedent and the defendant in the tavern. His wife was not available at trial because of her intervening death.
The other principal witness was Arthur T. Jordan. He testified on direct that: On the evening of May 4 he was walking on Chapel Avenue from the race track, where he groomed horses, to catch a bus. As he came to the Homestretch Restaurant, a distance of 50-75 feet from the Red Eagle
parking lot, he saw two men with sticks beating a third man. He said he saw Gardner strike the decedent with a stick. On cross, the following was developed: Although he first stated he was alone, he later admitted to being with someone else when he viewed the incident. The 50-75 feet distance from which he viewed the incident could have been as much as 600 feet. (The distance was actually in excess of 400 feet.) He could not distinguish the faces of the two attackers at the time of the blow, but could identify the defendant because Gardner had his hat on. He only saw Gardner's face after the blows were struck.
On redirect, he testified that he saw the decedent leave the tavern and did not remember the decedent having thrown any blows. Recalled on Monday, May 9, he admitted to having been with Raymond Ryan at the Homestretch Restaurant. Ryan testified for the defense. He stated that when he and Jordan arrived at the Homestretch Restaurant, the police and ambulance were already at the Red Eagle Tavern.
Patrick Gismonde, the final witness for the State, was the bartender at the Red Eagle. His testimony was to the effect that: The bar was crowded around nine o'clock. Lukasiak had made trouble by gambling in a pool game, and using abusive and vulgar language. Gismonde pushed Kittredge, a regular patron, down on the bar when he became involved in the dispute over the pool game. Lukasiak, Kittredge and Kittredge's wife left when the decedent was warned that he would be asked to leave if he did not behave himself. Although he remembered that Gardner and Hicks had been there, he did not know whether the decedent or the defendant left the bar first. He stated that Lester Gardner had been at the bar four or five times a week over a period of five to six years and had always been very mannerly.
The defendant, who was 5' 6" tall, testified as follows: He was employed at the Garden State race track. On May 4, 1964 he arrived at the Red Eagle Tavern at about 6:30 or 7:00 P.M. with Joe Bass and Alfred Hicks. After Gardner had bought a few rounds of beer, Hicks took Bass home. [51 NJ Page 452] Gardner undertook to play pool with another patron of the tavern. The decedent came over to the pool table and said "no little black so and so is going to shoot any pool in here", and proceeded to berate defendant and his race. Gardner left the pool table peacefully and returned to the bar fearful that Lukasiak would start trouble. After having another beer, Gardner went outside to look for Hicks who had promised to return. He turned left at the sidewalk on Chapel Avenue, going toward Highland Avenue and Route 38 where he met Hicks. The two men then re-entered the Red Eagle. Gardner went to the lavatory and on coming back to the bar found Lukasiak arguing with Hicks. Thereafter the bartender had an argument with Lukasiak and Kittredge. Kittredge and Lukasiak left the bar shortly after the former was hit by the bartender. He and Hicks left 15 or 20 minutes later. When he and Hicks left, he made a right turn going toward the parking lot, where he saw Kittredge and Lukasiak standing. Lukasiak ran over and grabbed him just as he arrived at the walk in front of the tavern. They scuffed, ending up in the parking lot. Hicks ran over to the sidewalk, where construction was being done and picked up a "club" from the wood lying around. Lukasiak was "choking" defendant by the collar of his jacket. Hicks struck Lukasiak with the stick. The victim fell to the ground. Defendant did not strike any blows but did kick Lukasiak two or three times "out of fear". Hicks struck Kittredge and his wife who intervened. Gardner and Hicks then ran to Hicks' car, which was parked near a Dunkin' Donuts Restaurant on the other side of Route 38. Dunkin' Donuts Restaurant was located a good distance from the Red Eagle on the opposite side of the tavern from the parking lot. To get the car would have required a left turn upon leaving the Red Eagle. Gardner explained why he turned right rather than left upon leaving the Red Eagle by saying he did not know where Hicks had parked the car. Later in the evening, after learning that Hicks had been picked up by the police, Gardner voluntarily went to the Cherry Hill Police
Station. He gave the police a statement at 4:55 A.M., May 5, 1964. The statement differed from the testimony given at trial in that he stated in the former that he did not know whether Hicks hit Lukasiak with an object and that Lukasiak and Kittredge had left the bar only a matter of seconds before he and Hicks left. In a deposition given to the Cherry Hill police on May 5, 1964 he said that when Hicks returned, he told Gardner that he was parked at Dunkin' Donuts. At trial he denied having made this statement but did not deny having met Hicks to the left of the parking lot in the direction of the Dunkin' Donuts.
Hicks testified for defendant. He admitted that he struck the decedent with the stick while, and only because, Lukasiak was "choking" Gardner. He corroborated Gardner's testimony to the effect that Gardner kicked him after he fell, although he later said he "couldn't remember" the decedent falling. He admitted to being under the influence of alcohol at the time.
Defendant asserted two basic defenses, i.e., (1) he denied that he struck Lukasiak, and (2) in any event the blow which resulted in Lukasiak's death was delivered in defendant's defense, and the slaying was therefore an excusable homicide.
Defendant argues that the trial court erred in that:
I. The court improperly charged that defendant had the burden of proving self-defense.
II. The court improperly charged on the presumption of second degree murder.
III. The court improperly charged on the credibility of an accomplice.
IV. The court improperly admitted hospital reports.
We shall consider defendant's alleged grounds for reversal in ...