Kilkenny, Halpern and Lane. The opinion of the court was delivered by Lane, J.A.D.
Defendants were indicted for the manslaughter of Angelo Rye in violation of N.J.S.A. 2A:113-5. The jury found both defendants guilty. The matter is before the court on the appeal of Jose Morales.
The homicide occurred shortly after midnight on October 1, 1968 at Emily's Inn in Easthampton Township, Burlington County. Morales, a married man with seven children, was stationed at Fort Dix awaiting honorable discharge after 20 years of service in the United States Army. On September 30, 1968 after attending an R.C.A. Training School where he was learning to become a television repairman, he and a friend, Sergeant Reynolds, went to Emily's Inn looking for a mutual friend. They arrived at approximately 10 P.M. After having a few drinks, Morales played a game of pool with Rye, the deceased. Rye lost the game and became rather upset although there was no real disagreement between Morales and Rye. Immediately before the shooting Rye and a friend, Linda Markle, were sitting at the bar, as were Morales and Reynolds. The co-defendant, Leon D. Yates, was sitting between Miss Markle and Morales. Before September 30 Morales had never seen Rye, Markle or Yates. Rye got into a conversation with Yates about their respective terms in service. During the
course of this conversation Morales called Rye "chicken." Words were passed between Morales and Rye. Yates reached down and put a gun on the bar which he passed to Rye. Rye picked it up and then slid it back to Yates. The testimony is not clear as to exactly what happened after the gun was returned to Yates. There was testimony that Yates pushed the gun towards Morales and said to him, "Shoot that bastard." Morales picked up the gun, said something and the fatal shot was fired.
After the shooting Morales remained at the bar. Yates picked up the gun and walked out of the inn.
Morales testified as to the shooting that he had never seen a weapon like that in his life. He thought it was a toy gun and as he was handing it back to Yates, the gun went off. Subsequently the gun was retrieved by the police from a parking lot down the road from Emily's Inn where Yates had disposed of it.
Defendant argues that he was substantially prejudiced by an erroneous instruction given to the jury. In substance the alleged erroneous instruction was that it would be legally inconsistent for the jury to find Morales not guilty and to find Yates guilty. No objection was made at the time of the trial. He further argues that he suffered irreparable harm because the court in answer to an inquiry from the jury advised the jury that they might recommend leniency.
The thrust of the State's case was that Morales was guilty as the principal who actually committed the manslaughter and Yates was guilty of aiding and abetting. Under N.J.S.A. 2A:85-14 an aider and abettor is indicted as a principal. In his instructions to the jury which were somewhat confusing the trial court limited the jury's consideration of the charge against Yates to that of aider and abettor.
The court specifically charged the jury:
You may find that the defendant Yates was either guilty of manslaughter by reason of the statute known as the aiders and abettors statute, which I have explained to you, if your verdict of guilty is
returned as to Morales, but it would be legally inconsistent for you to find Morales not guilty and to find Yates guilty under the circumstances and under the thrust of the aiders and abettors statute. You should know further that you may find the defendant Yates not guilty of the charge of manslaughter even should you find the defendant Morales not guilty of manslaughter or if you find the defendant Morales guilty of manslaughter and you further find from your examination of the proofs that the acts and conduct of the defendant Yates ...