For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
Defendant appeals from a verdict of murder in the first degree with a recommendation of life imprisonment.
The facts concerning the killing itself are undisputed. Defendant appeals on the single ground that his identification as the perpetrator of the murder upon which his conviction must have been bottomed was against the weight of the evidence.
The undisputed testimony concerning the homicide is as follows: On October 6, 1965 a report was made to the Newark police, that a black 1960 Cadillac, license number HLA 660 had been stolen during the early morning hours. On that date Sergeant William Connelly, a member of the East Orange Police Department, was on car patrol duty by himself in a zone which encompassed north 17th and 18th Streets. Shortly before 11:38 A.M. Sergeant Connelly directed the driver of a black Cadillac with the above license and travelling on North 18th Street, East Orange, to pull to the curb. He pulled his car abreast of the Cadillac. At or about 11:38 A.M. he transmitted a call to the East Orange Police Station from his patrol car advising that he was on North 17th Street (he was actually on North 18th Street) between William Street and Park Avenue engaged in the
recovery of a stolen car and the investigation of the occupant. As a result of this call officers Landon and Nash were dispatched to help Connelly. These officers arrived in time to see Connelly and the driver of the stolen car, engaged in a struggle. The operator of the Cadillac fired his own revolver three times at close quarters, hitting Connelly each time. Connelly staggered, fell backward against the police car, then forward to the ground. The assailant ran in an easterly direction between two houses toward North 17th Street pursued by both Nash and Landon. Nash continued to search for about ten minutes but was unable to locate Connelly's assailant. Landon returned to attempt to treat Connelly and at 11:43 A.M. called for an ambulance which arrived shortly thereafter. Connelly stated on his way to the hospital that he did not recognize his assailant. He died on the operating table of the East Orange General Hospital.
The basic issue of the trial was the question of the identity of Connelly's killer. It is on this question, as noted, that defendant bottoms his appeal, arguing that the testimony of the eye witnesses to the crime who identified him at the trial, and that of the fingerprint expert who identified a latent print on the Cadillac as being his, was unbelievable.
"We cannot interfere with a jury's verdict unless 'it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion.' R.R. 1:5-1(a); State v. Hudson, supra, 38 N.J., at p. 379. * * *"
There were several eyewitnesses to the crime who positively identified the defendant at the trial. Defendant directed his attack upon this testimony by pointing to alleged discrepancies between the witness' pre-trial description of the assailant and defendant's actual appearance. Although
there were some differences, they were only of such a nature as to raise a jury question of the accuracy of the trial recognition of defendant. Additionally, defendant stresses that one witness who faced the assailant at a distance of some 20 or 30 feet after the shooting of Connelly and at whom defendant leveled a revolver, had previously identified a third person in a New York lineup as the perpetrator of the murder. This witness though subpoenaed by the State was not called by the State but was called by defendant. The witness explained her mistake in New York by alluding to her physical condition at the time of the New York confrontation. She stated that the trip to New York succeeded a coronary episode as a result of which she had been restricted to her bed in New Jersey until a few days before she was required to travel with the police to New York. As a result of her physical condition and the rapid pace of events she was confused. Here also we cannot say that the ...