For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Francis, J.
Defendants were charged with the robbery-murder of Benjamin Caruso at his home in Plainfield, New Jersey, in the early morning hours of August 7, 1966. On April 20, 1967, a jury found them guilty of first degree murder. The verdict not being accompanied by a recommendation of life imprisonment, the trial court imposed the death penalty. Both defendants have appealed therefrom directly to this Court under R.R. 1:2-1(c).
At the trial the State offered proof showing that between 1-3 A.M. on August 7, 1966, John E. Davis and defendants Michael Frederick Dent and Harvey Franklin entered the home of Benjamin Caruso for the purpose of stealing. Davis was a juvenile, aged 17; Dent and Franklin were over 18; their exact ages do not appear in the record. Caruso
awakened and began to shout, at which Dent and Franklin subjected him to a brutal beating about the head and body as the result of which he died in about an hour. Franklin took about $90 and a metal heater from the house. His palm print was found on the heater when the police recovered it. Apparently Dent appropriated a metal tool box and some gloves. The articles and the money were brought across the street to Davis' parents' home where Davis lived, and hidden in the cellar. The stolen money was divided equally, each of the three receiving somewhat in excess of $30. They then went to sleep in the cellar for several hours, and left the Davis home between 10 A.M. and 11 A.M.
When the victim was discovered dead in his home he was naked, except for a piece of cloth which, according to the police, was found loosely tied around his neck. A second piece of the material was picked up in the Davis home by a police officer. Examination of the two pieces by the chief chemist and toxicologist for the New Jersey State Police revealed that they came from the same cloth.
At the trial the State produced Rochelle Eure, a 19-year-old friend of Davis and of the two defendants. Eure testified that on Sunday afternoon, August 7, 1966, around 1:30, Davis, Dent and Franklin were in the street in front of the Davis home throwing a football around. He was with them but was not participating in the game. In the course of conversation Dent and Franklin "mentioned something about a guy" and "some kind of punches." They demonstrated "as if they -- a fight or something." Dent said something about "a left hook." At the prosecutor's request the witness assumed a boxing stance to show how Dent and Franklin demonstrated the action to him. Eure testified also that, although nothing was said during this conversation and demonstration about the other person in the fight, either Dent or Franklin "nodded" in the direction of a house on the opposite side of the street. The plain inference from the record is that the house indicated was that of the decedent Caruso.
The State's principal witness was John Davis, one of the three actors in the criminal event. Prior to this trial he had been charged in the Juvenile Court with juvenile delinquency arising out of the robbery, and aiding and abetting the murder of Caruso. Following admission of guilt he was sentenced to an indeterminate imprisonment term in the Annandale Reformatory. He was still in confinement there at the time of the trial. On being called to the stand he refused to say anything. The jury was excused and the trial judge rejected a plea of the Fifth Amendment, pointing out that he had already been sentenced on the case against him. After some stern questioning by the judge, Davis asked to see his parents and his attorney. A recess was taken which lasted three hours during which time he talked to his attorney and parents. The trial resumed and the transcript of the intervening events and questioning was read to the jury. On retaking the stand Davis explained his original attitude by saying he was nervous and wanted his parents present. He then proceeded to testify.
Davis said he was with Dent and Franklin in the early morning of Sunday, August 7, 1966. They had been "out" together. Around 1:00 a.m. he told them that Michael Caruso, who lived across the street from his parents, had some money. All three then walked around Caruso's house to see how they could get in. Franklin and Dent went in through a window. Davis did not go in that way. He said he remained outside for a time. Then he heard "hollering" and went into the house by means of the back door. He said he only went into one room and did not see Caruso. He remained about five minutes, during which time he went through some drawers and papers looking for money. Then he left with Franklin and Dent. The tool box, heater, gloves and the money were taken with them. He could not remember if he carried any of these things. The articles were brought to his parents' home and hidden in the basement. The money was divided. Franklin, in Dent's presence, told him that Caruso had awakened and started to shout.
When he refused to be quiet they beat him and "knocked him out."
Davis corroborated Eure's testimony about the Sunday afternoon conversation. He said that in Eure's presence he, together with Franklin and Dent talked about breaking into the Caruso home, stealing the money and articles and beating Caruso.
At the conclusion of this testimony, defense counsel suggested to the trial judge that he had treated Davis harshly until the agreement to testify was reached. They claimed that from then on the judge "mellowed" and treated him in a very considerate fashion. They urged that this change prejudiced defendants with the jury because it indicated to the jury that the judge believed the witness. Thereupon, at their request, the judge turned to the jury and advised them that whatever his attitude was or seemed to have been, it was "in no way an indication as to whether or not his testimony is to be accepted by you. That's entirely within your power. It was not my intention by any indication of my attitude to take a position. * * * The truth of his testimony is for you to decide." Although no objection was noted to this statement, and no request for further elucidation was made, defendants claim on this appeal that the instructions did not remove the prejudicial impression that the jury must have had from the court's treatment of Davis. There is no merit in the contention. The judge's intervention to induce the witness to testify was a matter of discretion in the emergent situation. His forthright statement to the jury, at counsel's request, with respect to the purpose of that intervention was adequate, in our judgment, to neutralize any possible prejudice to defendants.
But in charging the jury respecting Davis' testimony the trial court fell into reversible error. The jury was told that Davis was a critical witness for the State, having admitted his own participation in the crime and asserting that the defendants were active participants with him. Then, in accordance with State v. Spruill, 16 N.J. 73 (1954),
they were instructed that since Davis was an accomplice "his testimony should be given close scrutiny to determine whether or not he was influenced by any hope of advantage from his testimony or any fear which affected his truthfulness." The language of the charge immediately following, in our judgment, dissipated the force of that statement. The court said:
"In view of the fact that Davis has admitted his guilt and has been sentenced as a juvenile, there does not appear, on the surface at least, to be any advantage that he can gain from testifying for the State. Whether or not he had any such hope I cannot tell. Whether he had any ...