For affirmance as modified -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Proctor, J.
Defendant Calvin Bess was convicted of murder in the second degree for the fatal shooting of James W. Grunden. He was sentenced to ten to fifteen years in State Prison. He appealed directly to this Court challenging his conviction and sentence.
The objective facts of the homicide are virtually undisputed. The defendant, age eighteen, was employed as a bartender at the Club Supreme, a tavern in Elizabeth. On December 11, 1966, in midafternoon, the decedent Grunden was a patron sitting at the bar. Two men and a woman employee were also sitting at the bar. They testified for the State and their versions of the homicide were substantially in agreement. Grunden ordered a drink of whiskey and gave the defendant one dollar, receiving 40 cents in change. Grunden said: "What are you doing, cheating me again, huh? Joe only charges me 50 cents." He finished the drink and ordered another, saying that he did not have 60 cents but that he would pay only 40 cents. The defendant told him that he could not charge less than 60 cents, and that if he wanted to complain he should wait until Joe Adair, the owner, returned. Grunden then said that he would pay 55 cents and he placed some change on the bar. The defendant said: "Joe gives us a set price. We have to charge what he said. I can't give you a drink for 55 cents. The drinks are 60 cents." Grunden then got up from his seat and hitting the bar with his fist said: "I will come back there and take my drink." The defendant said: "You can't do that." Grunden replied: "Oh, no?" or "Well, I am coming." He then started to walk toward the entrance to the inside of the bar. At this point defendant's manner was "courteous" and his voice was "quiet," while Grunden's voice was "sort of
raspy." When Grunden was almost to the entrance to the bar, the defendant took a pistol from behind the cash register. The owner of the bar, Adair, had a permit to possess the gun. As Grunden began to enter the inside of the bar the defendant, now carrying the gun, walked toward him and said: "Don't come back here. I mean it." Grunden replied: "That don't stop me" or "That gun don't scare me." He then entered the rear of the bar.
After the defendant picked up the gun and during the ensuing conversation, he was walking toward the bar entrance to which Grunden was walking at the same time. The witnesses were in disagreement about the distance covered by the defendant, variously describing it as eighteen or nineteen feet, twelve feet, and six or seven feet. He walked "sort of slow," carrying the gun "down" in his hand. Grunden came behind the bar and the two men walked toward each other. When they met Grunden "nudged" the defendant with his "right elbow." As to the force of the collision one witness said that "you can feel it with the contact that he [Grunden] gave him, you know." There was testimony that after coming in contact with each other the defendant stepped back and the gun was discharged. At the time Grunden was three or four feet inside the bar. He died as a result of the shot. After the shooting the defendant replaced the gun behind the cash register and gave 10 cents to one of the witnesses to telephone the police, who responded to the call almost immediately. The defendant made no attempt to escape and cooperated with the police investigation.
The defendant was described as being small, weighing approximately one hundred and fifty pounds. It was stipulated that the decedent was six feet and one inch tall, weighing two hundred and seventy-five pounds and was thirty-one years old.
In his defense Bess testified that he was not acquainted with Grunden, although he had seen him on two prior occasions. His testimony as to the shooting did not materially
dispute that of the State's witnesses. When asked why he picked up the gun, he answered: "To be frank, I picked it up, I figure if he see it, he would not come behind the bar." He testified that he was "bewildered" when Grunden said he was coming behind the bar because he had never heard anyone say that before. When Grunden told him that the gun would not stop him he became afraid: "Well, at that point, seems like my stomach had arouse to my throat and seemed like it was choking." After they collided he said that Grunden reached for his hands, knocking him off-balance and as he stepped back he heard the gun go off; that he at no time intended to shoot Grunden, nor did he recall having pulled the trigger.
When asked why he did not retreat instead of advancing toward Grunden, the defendant answered: "I couldn't tell you I didn't back up or why I stayed there because, really, I don't know, it was just funny. * * * I don't know why I did walk, to tell you the truth." He denied that he walked toward Grunden for the purpose of shooting him.
The principal of the junior high school in Elizabeth that defendant had attended testified the defendant had an overall I.Q. of 66 but that his citizenship qualifications were considered average or above average. Dr. David M. Fink, a psychologist, testified on defendant's behalf. He said that as a result of psychological tests administered to Bess, he found that the defendant was "an emotionally unstable, immature individual whose thinking is often childish." Dr. Fink placed Bess's intelligence in the "dull-normal" range below a sixth grade level, concluding that "he can become confused and almost disorganized with pressure."
After the defendant rested the State called a firearms expert in rebuttal who testified that the gun would not discharge until at least four and a half pounds ...