For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
This is an appeal from a jury verdict of murder in the second degree. The State had sought a capital verdict of first degree murder.
The following facts were proved at the trial:
Defendant contracted to sell his tavern to a corporation consisting of the two sisters and the so-called "common-law wife" of the deceased Roy Holloway. Although Holloway was the real purchaser, he did not take the license in his name due to a then-recent conviction of illegal possession of untaxed alcohol. The closing date stated in the contract was June 15. However, the contract also provided for closing on or about the day following receipt of the transfer of the liquor license and issuance of a restaurant license by the City of Paterson. The transfer of the liquor license was accomplished on June 10. On that date the parties inventoried the stock, and Holloway, at defendant's suggestion, took actual possession, although there had been no transfer of the lease of the premises or final closing. Defendant worked for Holloway in the bar that night and the next day. On June 13, he demanded the balance of the money due him, having already received, in addition to the initial contractual down payment, $100 from both Holloway and his lawyer for the same utility deposit. Holloway's attorney advised that no
further payments would be forthcoming until final settlement. There was no closing on June 15. On June 16, the date of the killing hereafter detailed, defendant had been out of possession since June 12 and had received only $500 cash, plus $200 for utility deposit on account of the purchase price of $5,000.
On the evening of June 16, Holloway and defendant entered the bar at about 8 o'clock. They talked for a "couple of seconds." Then defendant, who had lived in the building until shortly prior to this date, went to the bar and asked for his mail. He received it and left. When he returned some fifteen or twenty minutes later, he inquired of deceased, "Roy, are you buying?" Upon Holloway's affirmative reply, the two had a drink together. Defendant downed a shot of whiskey, drank half of his beer and left. A few minutes later he reappeared in the doorway, carrying a shotgun which he aimed at Holloway from a distance of ten or twelve feet. Holloway said "watch out," then a load of birdshot hit him in the shoulder and spun him around. He staggered toward defendant, who took deliberate aim and fired again, blowing a three by four inch hole in Holloway's head.
Defendant ran out of and to the rear of the building, ejecting two shells from the gun. He disappeared behind the building for a few minutes. The bartender and two of the three customers, who were present during the foregoing, fled from the building. The third customer hid in the men's room. Defendant reappeared carrying the shotgun, approached the entrance to the tavern, looked around and reentered. The police having been called, Detective Callahan arrived within a few minutes. When he entered he found the barroom deserted except for defendant and the profusely bleeding body of Holloway. Defendant was behind the bar with the double-barrelled shotgun pointed at the door. Crouching behind the corner of a pool table, the detective rested his revolver on the top and told defendant to drop the gun. He said, "I don't want to kill you." Defendant, pointing the gun at the officer, replied
"I know you are a Detective Policeman. I am not angry with the cops. I don't want to hurt you and I don't want you to hurt me."
There ensued the following conversation,
"Frank, put the gun down. You already hurt one man. I don't want you to hurt me."
"All right, Mr. Callahan, I know you won't hurt me."
Defendant put down the gun and raised his hands. Callahan removed two live 12-gauge shells from the gun. Eight more were removed from defendant's trouser pockets and 26 more were later found in his car, parked alongside the tavern. Defendant offered no resistance as he was escorted to the police car. Callahan testified that, on the way to the police station, he inquired of defendant what the trouble was and
"he said that these people had bought the tavern from him. They only paid him part of the money. He was down to try to collect the rest of it. They were laughing and ...