For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall and Schettino. The opinion of the court was delivered by Francis, J.
Defendant John Lee Briley was charged by indictment with the murder of Benjamin Reaves, Jr. and with the commission of an atrocious assault and battery upon Paulette Briley, defendant's wife. Since the offenses arose out of a single event, they were joined in individual counts of one indictment. Defendant's pretrial motion to sever the counts and to try them separately was denied. A jury trial resulted in a conviction of manslaughter and atrocious assault and battery, followed by imposition of concurrent sentences of 7 to 10 years imprisonment on the homicide count and 3 to 5 years on the atrocious assault and battery count. Appeal directly to this Court followed under the original form of R.R. 1:2-1(c).
The principal ground of appeal is that as defendant's wife Paulette Briley should not have been allowed to testify against him except with regard to the atrocious assault and battery committed upon her. More particularly, the trial court is said to have erred in failing to exclude her testimony against him on the charge of murdering Reaves. Basically the contention is that such testimony is made incompetent by Rule 23(2) of the New Jersey Rules of Evidence, N.J.S. 2 A:84 A -17(2). The rule provides:
"The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse and the accused shall both consent, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is the complainant."
Some reference to the facts is necessary to an understanding of the alleged trial error. When this criminal event occurred on November 6, 1966, defendant, age 28, and Paulette age 18, had been married for three years. Their
marriage was stormy; he was suspicious of her fidelity although his own constancy apparently left much to be desired. On Thursday November 3 they quarreled because defendant found his wife and Reaves embracing. She then left their home with her baby and stayed for the next three nights at the Rainbow Motel on Route 22, Green Brook, N.J. The State produced testimony from Mrs. Briley's brother that during the quarrel Briley told Reaves if he ever caught him with Paulette he would kill him.
On Sunday morning, November 6, Reaves came to the motel and picked up Mrs. Briley and the baby. They got into his car and Reaves was about to start it when Briley, who had been looking for his wife, observed them. According to Mrs. Briley he ran toward the car, armed with a shotgun, part of the stock and barrel of which had been sawed off. Briley claimed that as Reaves got out of the car he reached into his back pocket for a knife. In the course of the ensuing struggle the gun was discharged, and Reaves died shortly thereafter from a gunshot wound in the abdomen. At the trial Briley said that he did not have his finger on the trigger when the gun went off and that the firing occurred somehow in the struggle. He maintained also that his pretrial statement that he "had shot him in the stomach" did not give a true picture of the accidental nature of the shooting. His intention was to "frighten Reaves, not to shoot him."
In her testimony, which was objected to in reliance upon Rule 23(2), Mrs. Briley denied seeing a knife in Reaves' hand. She heard the gun go off and saw Reaves fall. Then she saw her husband raise his arm as if he was striking the fallen man. The autopsy showed (in addition to the shotgun wound) that the deceased had lacerations of the scalp and abrasions of the forehead, right eye, nose, kneecaps and hands.
Mrs. Briley put her baby on the seat of the car, got out of the passenger side and started to run down the road. Briley pursued, intending to hit her because she had gone to the
motel with Reaves. She tripped and fell and he overtook her as she lay on the ground. He was still carrying the shotgun which was then empty. Apparently while asking what she was doing at the motel "with that man," he struck at her with the gun, causing the injuries which resulted in the indictment for atrocious assault and battery.
During the trial when defendant's wife was produced as a witness for the State, the pretrial motion to sever the homicide and atrocious assault and battery counts was renewed and again denied. Since the two alleged crimes arose out of a single event or transaction, joinder in separate counts of a single indictment was proper. R.R. 3:4-7; 3:5-6. Determination of the claim of alleged prejudicial joinder involved an exercise of discretion by the court. R.R. 3:5-7. Obviously the refusal to sever the counts did not constitute an abuse of discretion. See State v. Coleman, 46 N.J. 16, 24 (1965), certiorari denied 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2 d 212 (1966). Defendant then moved to limit his wife's testimony to the charge of atrocious assault and battery upon her and to exclude it with respect to the murder. This too was denied. Her statements as to the entire event were admitted without qualification in ...