Kilkenny, Halpern and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.
The Atlantic County grand jury jointly indicted five men for the murder of one Albert Flacco on November 30, 1968 in Atlantic City, contrary to the provisions of N.J.S.A. 2A:113-1 and 2A:113-2. Because of the complexity of the names of those indicted, we shall for the sake of simplicity refer to them hereinafter as Tapia, Laboy, Hernandez, Rodriguez and Rivera.
The five men were jointly tried before a jury. None of them testified or called any witnesses in their defense. The trial judge granted Rivera's motion at the close of the State's case for a judgment of acquittal. The jury acquitted Rodriguez. The jury found Hernandez guilty of manslaughter. It returned a verdict of guilty of murder in the second degree against Tapia and Laboy.
They were sentenced to the Yardville Reformatory, Youth Reception and Correction Center, for maximum terms of eight years in each instance. The present appeal from the judgments of conviction is being prosecuted jointly only by Tapia and Laboy.
It is undisputed that on November 30, 1968, at approximately 12:30 A.M., Albert Flacco was stabbed to death during a barroom fight at the Adelphia Bar in Atlantic City. The jury could reasonably find from the evidence that, in that fight, Tapia and Laboy and Hernandez, at least, were arrayed on the one side and Flacco was alone on the other side. An eye-witness testified that both Tapia and Laboy used a knife in stabbing at Flacco, and Flacco, a carpenter by trade, brandished a carpenter's handsaw in warding off his attackers.
During the melee, another eye-witness, Harry R. Wilson, observed a butcher's knife, bloody to the hilt, sliding across the floor from the area across the room where the fight was in full progress and coming to rest at his foot, as he stood at the bar close to Rodriguez. Wilson thereupon picked up this knife and threw it behind the bar to prevent any further use of it. There was no direct evidence as to whose hand had held
this large knife or who, if any of those involved, had plunged it into the victim.
There was medical testimony by Dr. Milton Ackerman, who conducted a postmortem examination of Flacco on November 30, 1968, at about 10:15 A.M., that the victim died of a stab wound of the chest with hemorrhage produced by that stab wound. He elaborated that "the wound penetrated the left chest * * * at about the level of the sixth rib * * * passing through the lower lobe of the left lung, and then penetrating the heart." He described the wound as a "tapering wound" and calculated the depth of the wound as "five to six inches" from the skin surface to the point of the deepest penetration of the left heart chamber.
Shown a 3 1/4-inch-blade knife found in Tapia's dresser, Dr. Ackerman stated his opinion that "this knife could not have caused this wound." Shown a skewer found under a refrigerator in Rodriguez' apartment, which was circular and only three or four inches long, the doctor stated as his opinion that this skewer could not have caused the death wound. This opinion was based also on the fact that the wound was made by a "flat-bladed object" and the wound penetrating the skin "was a little bit under two inches." The smaller knife, found in Tapia's dresser, was not even an inch and one-half wide. But Dr. Ackerman stated as his opinion that the butcher knife could have produced the "entrance wound" and its blade of "almost ten inches" could have been the knife used to inflict the mortal wound.
Certainly, the jury could reasonably find the butcher knife, with blood on it to the hilt, sliding across the floor from the direction of the battle area, was the weapon used to kill Flacco.
Marion Kamen, a witness for the State, testified that, in her capacity as a senior chemist employed by the New Jersey State Police, she typed and classified blood samples of the victim Albert Flacco and defendant Laboy, as well as blood on the hilt or handle of the butcher knife. All revealed Type O blood. The skewer was negative for blood; the small
knife was positive for human blood, but there was not enough for typing. Hernandez' blood was Type B.
There was evidence of animosity on Laboy's part against Flacco which predated the fatal incident. Mrs. Nola Link, a girlfriend of Flacco, testified to a conversation she had with Laboy a week before November 30, during which he told her: "If I don't get your husband, meaning Al, that he will kill my child or me." This threat was apparently prompted by Laboy's expectation that Flacco would testify against him in an unrelated robbery case. There was testimony by eyewitnesses that, immediately before the murder, Flacco had walked from the bar toward a pool table where Laboy was with Tapia and Hernandez, and as Flacco approached the men, there was a heated argument in Spanish and Flacco was struck ...