For affirmance but withholding entry of judgment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
[57 NJ Page 26] Defendant was convicted of the first degree murder of George Kayser. The jury made no recommendation so the death penalty was imposed. The State's theory of this particularly gruesome homicide was felony murder, occurring in connection with the perpetration of a robbery of the decedent's person. There was no doubt from the medical evidence that death was caused by an automobile running over decedent's body while he lay upon the ground in an alley in Orange in an intoxicated condition. The prosecution's proofs sought to establish that defendant had just robbed the decedent and had deliberately driven the car over his body to dispose of him and to preclude defendant's identification as the robber. The principal defense was alibi.
The State's case rested essentially upon the testimony of two men, McClain and Newkirk, who were friends of defendant and said they were with him and decedent at the time in question, and upon some especially incriminating physical evidence.
McClain testified that he met defendant and Newkirk in an Orange tavern late in the evening of September 11, 1967. A bottle of wine and one of gin were purchased and the three went outside to a car, which proved to be the decedent's, parked nearby. The decedent, a white man (all the others involved were black) whom McClain had never seen before, was sitting in the front seat on the passenger side, drinking out of another bottle. His condition was described as "real high." A fifth man, one Johnson, known to McClain, was seated in the back seat of the car, very drunk. Defendant entered the driver's seat and McClain and Newkirk got in the rear. They proceeded to drink out of the recently acquired bottles. Some little time later they decided "to go somewhere," with defendant driving. They took Johnson home and then cruised about Orange streets to a point where defendant stopped the car and made a gesture to McClain to grab the decedent around the head, which he did. Defendant then got out of the car, took McClain's position in the rear seat, grabbed the decedent from the back, rifled his pockets and removed his wallet. McClain then, at defendant's direction, drove the car into the alley some distance away. He, defendant and Newkirk got out of the car and defendant pulled the decedent, now helpless, out onto the ground. Defendant straddled the decedent and started to choke him. McClain asked defendant what he was going to do and he replied that "the man with the car knew his name * * * so he said that he was going to kill him." McClain protested and defendant said he "was going to run him over." Whereupon McClain left the scene on the run. On his way out of the alley he heard the wheels of the car spinning.
Newkirk's story was substantially in accord with McClain's although perhaps implicating McClain more deeply in the robbery and assault of decedent. (The witnesses were sequestered and did not hear each other testify). Newkirk said that he was an eye-witness to the killing. After McClain left the alley, he said defendant got into the driver's seat and directed him to seat himself on the passenger's side of the front seat. Defendant then backed the car, turned it around to go out the alley and "ran over the man going out the alley." Newkirk said he jumped from the car when it stopped for a red light and made an anonymous telephone call to Orange police headquarters, advising that there was a body in the alley. He further stated that he met the defendant about a month later who said "You know, nobody ain't killed the white man but me."
The car was found against a tree on a street in East Orange some time later that night, with the decedent's wallet lying on the rear seat and the registration in his name in the glove compartment. Defendant's fingerprint was discovered on the left door adjoining the driver's seat and there was fresh blood on the frame underneath the car.
Defendant was not arrested until some months later, when he surrendered to police at his attorney's office in Newark. After he was brought to Orange police headquarters and directed to empty his pockets and wallet, a pawn ticket was found in the wallet. Investigation thereof disclosed that it covered a wristwatch, identified by the decedent's sister with whom he lived as belonging to him. The ticket stub in the pawnbroker's possession contained a fictitious name, but the address given was that of defendant's residence in Newark.
Defendant's story was that he had met the decedent for the first time on the morning of September 11, when the latter was in his car in the company of a friend of defendant's. Defendant, the decedent and various other friends of defendant, including Johnson, spent most of the day drinking in various taverns and in a trip in the car to Newark to defendant's lawyer's office to borrow some money. He
said he last saw the decedent in one of the taverns at about 6:00 P.M. and had seen Newkirk only early in the evening. He denied having seen McClain at all or having been in the alley at any time that day. He claimed that he left a tavern for the last time about 8:15 P.M., went to the home of a relative for a while and returned to his home at about 10:00 P.M. when he went to bed. No witnesses were called to substantiate the alibi and no explanation was offered concerning the pawn ticket.
Defendant also stressed his physical condition at the time. He had injured his legs in a motor vehicle accident many months before and said that his leg movements were so restricted that he could not perform many of the movements attributed to him and that he had to use crutches. (McClain testified the crutches were on the floor of the rear seat of decedent's car during the entire period involved). There was considerable testimony, however, that defendant did not use the crutches at any time on the day in question. He disclaimed driving the decedent's car at any time and said that he had entered the vehicle only from the right door.
Our thorough study of the full trial transcript demonstrates that many of defendant's contentions are so lacking in merit as ...