Collester, Leonard and Halpern. The opinion of the court was delivered by Collester, P.J.A.D. Halpern, J.A.D. (dissenting).
Defendant was indicted and tried for the murder of Sally Gulden. He was found guilty by a jury of murder in the second degree and sentenced to a prison term of 15-18 years. This appeal followed.
On September 25, 1970, at approximately 6:35 P.M., members of the Trenton Fire Department responded to a fire at 218 Whittlesey Road, a one family house located in a row of adjoining houses. After gaining entrance by breaking the locks on the front door they found the dead body of Sally Gulden on the floor near a sofa in her living room. They also found defendant unconscious on the kitchen floor near a wall telephone, the receiver of which had been removed. He was taken to a hospital where he remained unconscious for eight to twelve hours due to smoke inhalation which aggravated a condition of chronic emphysema from which he suffered.
After the living room sofa, the point of origin of the fire, was removed and the premises were ventilated an automatic pistol and two spent shell casings were discovered on the floor near where Mrs. Gulden's body was found. An autopsy was performed which revealed that she had been shot five times and had died from gunshot wounds and not from the effects of the fire.
The fire was discovered by Nicholas Urbano. He testified he had a date to take Mrs. Gulden to the movies on the evening of September 25 and attempted to reach her by telephone
after he finished work at 6:20 P.M. He said that no one responded when he repeatedly said "hello" but he could hear loud music playing in the background. He dialed again and received a busy signal. Urbano testified he drove to the Gulden house where he observed that a front picture window was blackened and smoke was coming from a second story window. He unlocked the front door with a key Mrs. Gulden had given him but could not gain entrance because a chain lock was latched inside. Urbano called to Mrs. Rebecca, a next door neighbor, and told her to call the fire department. He then went to the rear of the house where he met Dominick Rebecca. He opened the rear door with a key but neither he nor Rebecca could enter the kitchen because of the dense smoke. At this point the firemen arrived. After the fire was extinguished police found that a record was on the stereo turntable and the volume control had been turned up.
Following an investigation by the police defendant was charged with the murder. The theory of the State's case was that defendant shot and killed Mrs. Gulden because she had rejected him as a suitor and resumed her previous relationship with Urbano, a former boy friend. The case was based on circumstantial evidence and inculpatory admissions allegedly made to the police.
The State produced evidence to show that blood found on defendant's clothes matched the blood type of the victim; that defendant owned an automatic pistol; that he arrived at the Gulden house before the fire occurred; that Mrs. Gulden had told her daughter and sister she intended to break off her relationship with defendant and marry Urbano, and (contrary to defendant's subsequent testimony that he had a key to the house) that Urbano had changed the door locks on the house one or two days before the fire.
After the State's direct case was completed the defendant produced testimony by several witnesses and testified on his own behalf. His story was that he and Sally Gulden had planned to drive to Maryland to get married after he finished work as a part-time bartender on the evening of September
25. At about 5:45 P.M. he received a telephone call from Mrs. Gulden asking him to come over and take her with him to work because Urbano had threatened to stop the marriage and she was afraid to be alone in the house. He arrived at the Gulden house at 6:25 or 6:30 P.M. and let himself in with a key to the back door. He said that when he entered he was confronted with dense smoke. He managed to reach the living room where he tripped over Mrs. Gulden's body. He tried but was unable to lift her. He then groped his way to the telephone to call for help when he was overcome by the smoke.
Wood testified he first learned of Mrs. Gulden's death on September 28 when detectives came to the hospital and served him with a complaint charging him with murder. He denied that he ever owned or possessed a gun. He denied giving any statements to the police before or after his release from the hospital. He said he recalled only that a detective mentioned something about a gun while he was in the hospital and he told the detective he would not discuss it and that he wanted a lawyer. He also said that Mrs. Gulden had given him a house key a week or two before the fire when she had the door locks changed.
During the State's rebuttal Dominick Rebecca said that he saw Urbano, in Mrs. Gulden's presence, change the door locks the day before the fire. Detective Sergeant McGann also testified as a rebuttal witness for the State. He said he interviewed Wood twice in the hospital on September 28. On the first occasion Wood told McGann he arrived at the Gulden house at about 5:20 P.M. and had a drink. On the second visit McGann served defendant with a complaint charging him with murder. He asked Wood if he knew anything about a weapon and defendant answered that he owned a small black automatic. Wood was released from the hospital on October 1 and taken to the Detective Bureau where McGann again questioned him. The detective testified that the defendant told him he had arrived at the Gulden house about 5:15 P.M. and he and Sally Gulden had a few drinks.
He said the last thing he remembered, about 5:45 P.M., was sitting on a sofa with his arm around Mrs. Gulden.
No contention is made by defense counsel on this appeal that the verdict was contrary to the weight of the evidence. He does, however, advance several points of alleged legal errors which, he contends, requires a reversal and a new trial. The first point raised by defense counsel asserts that an oral statement defendant gave Lieutenant Worob while a patient in the hospital was improperly admitted into evidence. The lieutenant's testimony was produced by the State, at defense counsel's ...