For affirmance but withholding entry of judgment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
Jesse Edward Wilson was found guilty by a jury of first degree murder on two indictments, one for the murder of Esther Friedman and the second for the murder of Shep Binyard. The jury did not recommend life imprisonment and Wilson was sentenced to death on both convictions. His direct appeal to this Court is pursuant to R.R. 1:2-1(c), (now R. 2:2-1(a)(3)). The appeal is from Wilson's second trial. Previously he had been jointly tried with Wilbert Sinclair who had also been indicted for the same crimes, and both men were convicted and sentenced to death. These convictions were reversed because the trial judge failed to instruct the jury on the possibility of returning a verdict of second degree murder. 49 N.J. 525 (1967). In the course of our opinion we strongly suggested that the cause of justice would be better served if the defendants were tried separately. Id. at 550. Our suggestion was heeded, and it is from the conviction in Wilson's separate trial that he now appeals.
The State's theory at the trial was that Wilson was guilty of felony murder in that the victims were shot by Sinclair while he and Wilson were engaged in an attempt to rob. The principal prosecution witness, Abraham Friedman,
testified that at about 8:30 P.M. on October 24, 1964, he and his wife, Esther, were working in his package liquor store in Newark. One customer, Shep Binyard, was also in the store. Two men, later identified by Friedman as Wilson and Sinclair, entered the store. Wilson attempted to sit on a chair but fell. Binyard tried to help him up, but Wilson refused the help and got up himself and sat on the chair. Sinclair sought to purchase some "corn whiskey" or "bootleg whiskey," but was refused because Friedman thought Wilson looked "kind of under the weather."
Sinclair then drew a gun and said: "This is a stickup and just be quiet and nobody will get hurt." Mrs. Friedman implored, "Take whatever you want, but just leave us alone." Sinclair then directed Wilson to go behind the counter. Wilson did so and began walking toward the cash register which was on the far end of the counter. At that time Binyard approached Sinclair and said, "Why don't you fellows be nice and leave these good people alone?" As soon as Binyard said this, Sinclair shot and killed him. At this time Wilson was behind the counter in front of the cash register, and he tried to open it. He was at first unable to do so, but after receiving instructions from Friedman, he succeeded. Mrs. Friedman "got sort of hysterical" and ran out of the store screaming for help. Sinclair turned and fired at her. At the time of this shooting, Wilson had his hands in the register. Sinclair ran out of the store, and Wilson was left alone with Friedman. Friedman then picked up a bottle of whiskey and hit Wilson over the head, breaking the bottle. Wilson stood stunned for a moment, and Friedman ran toward a burglar alarm in an icebox at the rear of the store. Wilson followed until Friedman threatened him with the broken bottle which he still held. Wilson stood still for a second or so, looked around the store, and ran out. Friedman then went into the walk-in refrigerator and sounded the burglar alarm. Afterwards, he left the store and found his wife lying on the sidewalk, and with some help from
passersby, he carried her into the store and sat her on a chair. He learned later at the hospital that her wound had been fatal.
The police arrived three to five minutes after the alarm was sounded and questioned Friedman regarding the shootings. They then took him to the hospital to see about his wife's condition. While there he identified Wilson as "the man that was in my store that I hit over the head with the bottle." Wilson was being treated in the hospital for the head injury he received; he had been picked up by the police several blocks from the Friedman store. After he learned that his wife was dead, Friedman was taken back to the store where he, his son, and the porter closed up. As far as he knew, no money had been taken from the cash register. The police then took Friedman and his son to police headquarters where he was shown about six or eight photographs in a group from which he identified Wilson and Sinclair. Friedman then gave a statement to the police. As he was leaving the police station, he happened to look in an interrogating room and saw Sinclair whom he identified.
The State also presented several police officers who went to the store to answer the alarm. Detectives Farese and Moore testified that when they arrived at the store, Friedman told them that there had been a stickup, and "there was shots fired, and his wife got hit and the patron got hit." Friedman was hysterical, worried about his wife, and had to be asked questions three or four times. Moore testified that the cash register was open three or four inches. Officer Di Blasi, a fingerprint identification expert, testified he found no finger prints of value anywhere in the store.
Detectives Alford and Farese testified to the circumstances of Sinclair's arrest over defendant's objections. They said they saw Sinclair walking near his mother's home. They called for him to halt and when he did not they pursued him. About fifty yards away, in a parking lot, Sinclair sat down on a log and threw an object under a car. This object
was later identified by an expert as the gun which killed Mrs. Friedman and probably that which killed Binyard. Sinclair was arrested following his pursuit and taken to police headquarters where he was identified by Friedman.
The State also presented testimony that when Wilson was treated at the hospital for the wound on his head, slivers of glass were found on his jacket. An expert later identified this glass as part of the bottle which Friedman had used to strike the man he identified as Wilson.
The final evidence produced by the State was portions of Wilson's testimony from the first trial. These were read to the jury over defendant's objections. In this prior testimony, Wilson said that he had known Sinclair for about twelve years. On October 23, he left work late in the afternoon and began drinking. Without going into the details, it appears that he went on drinking intermittently until the next evening when the shootings occurred. That night, at about 7:00 o'clock, he and Sinclair went to Wilson's sister's house to get a gun which Wilson had obtained two days before. The sister was not there and they entered by forcing the locked door. The pair then left for a bar where they found Wilson's sister. Wilson testified that while at the bar, he dropped the gun on the floor and that Sinclair picked it up and kept it. Sinclair also obtained the bullets from Wilson, but it is not clear whether these were also picked up off the floor. The next thing Wilson remembered was being on the street with a bleeding head.
The defendant did not take the stand in the present trial but produced several witnesses on his case. Only two gave testimony of any significance. Officer Purcell testified that he responded to the alarm and that when he arrived, two officers were already present at the scene of the crime. He was in the store for about a half hour during which he asked Friedman questions regarding the shootings and listened while the other officers questioned him. Purcell ...