For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
The defendant George David Barnett was indicted for murder and, after a joint trial with Ellis E. Jones, was convicted of murder in the second degree. He was sentenced to serve a term of 10-12 years and appealed to this Court as of right under former R.R. 1:2-1(c).
On December 3, 1966 Barnett and his wife went to the Newark apartment of his aunt, Laura Featherstone, to pick up their child. While there Barnett, who had been drinking rather heavily, argued with his wife and when his cousin Charles Featherstone interceded, he fought with him. Barnett left and then returned to the apartment and a second fight ensued between Barnett and Charles. Barnett then drove to his home in Westfield where he washed and changed his clothes. He then went to a bar where he met Jones. Barnett, Jones and three others left the bar and went to Barnett's car, planning a stop in Newark. Before
entering Barnett's car Jones went to his own car where he obtained something and put it in his belt. Barnett testified that he did not at the time know that the thing Jones obtained was a knife. In Newark, Barnett and Jones left Barnett's car and went to the building where the Featherstone apartment was located. They met Charles on the stairway and Jones asked Charles why he had beaten Barnett earlier that evening. When Charles told him to mind his business, Jones lunged or swung at Charles with his knife.
Jones testified at the trial that he missed, that he went downstairs and that he then heard Charles say to his sister "Junie stabbed me", meaning Barnett who was known as "Junior" or "Junie". Barnett testified that Jones went downstairs after Charles had said "Junie" to his sister. The conflict in the testimony as to whether Jones had gone downstairs before or after Charles spoke to his sister raised a question as to whether Barnett, despite his own testimony that he had no knife in his possession, actually did have one and had stabbed Charles out of the view of Jones, with the ensuing statement by Charles to his sister that "Junie" had stabbed him.
Barnett and Jones left the apartment building at about 11:45 P.M. At about 1:55 A.M. (December 4th) Barnett was arrested in Westfield for drunken driving. Lieutenant Bell advised him of his constitutional rights, that he was under arrest for driving under the influence of intoxicating liquor, and that he was wanted in connection with a stabbing in Newark. Officers of the Newark Police Department went to Westfield and took Barnett to the Newark Police Headquarters, arriving there at about 4:30 A.M. The Miranda warnings were read to Barnett and he was informed that Charles was dead. At that point Barnett said, "Is he really dead -- Jones stabbed him". At about 2:30 P.M. Barnett was again advised of his rights. He signed a preamble which embodied the constitutional warnings and in which he stated that he was willing to give a statement and did
not want a lawyer. After he had been asked a few questions, his family walked in and the oral interrogation continued in their presence.
Later a written statement was taken and was signed at about 9:22 P.M. In it Barnett told about his earlier argument and fight with Charles, about his return to the apartment building with Jones and about seeing Jones lunge at Charles with his knife. He denied that he had any knife or other weapon in his own possession or that he knew that Jones had a knife on him at any point before Jones and Charles confronted each other on the stairway. In his own statement to the Newark police, Jones stated that he lunged at Charles and that Charles ran back to the apartment door, banged at the door and told the lady who answered that "Junie" had stabbed him. Jones also stated that he later told Barnett that "I had missed the guy with my knife" and that Barnett replied "that's alright" -- "he worked with me anyway". Barnett was first brought before a magistrate on December 5th, the matter was adjourned twice, and before the scheduled adjourned date Barnett was indicted for murder.
Before trial, counsel for Barnett moved for a severance, pointing out that since Barnett's statement tended to inculpate Jones and exculpate Barnett, its admission without excision would be prejudicial to Jones, and its admission with excision would be prejudicial to Barnett. The trial judge denied the motion, saying that he would deal with the matter of excision at the trial. At the trial, the judge stated that he would take a "strict interpretation" of State v. Broxton, 49 N.J. 373 (1967) and would delete all references to Jones from Barnett's statement and all references to Barnett from Jones' statement. Counsel for Barnett voiced firm objection, but the trial judge followed his stated course. We are satisfied that this was error and was prejudicial to Barnett. Barnett's statement prior to excision told about Jones' lunging at Charles with his knife, about Charles jumping back and calling "Junie", and
about Charles telling his sister to open the apartment door and again calling "Junie". After excision and as admitted into evidence as part of the State's case, the statement made it appear as though Barnett alone confronted Charles on the stairway and that Barnett then saw Charles run towards the apartment, telling his sister to open the door and calling out "Junie". As counsel for Barnett expressed it during the trial, the redacted statement put Barnett at the scene, eliminated all reference to someone else having knifed Charles and left the impression that Barnett had committed the crime. Similarly, in dealing with Jones' statement in which he acknowledged lunging at Charles with his knife, ...