Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[138 NJSuper Page 105] A jury found defendant Paul Sands guilty of second degree murder and defendant Frank Sheldrick guilty of first degree murder in connection with the death of one William White. Each was also found guilty of the illegal possession of a firearm, and Sheldrick, additionally, was convicted of assault with an offensive weapon and threatening the life of another. Both appeal.
The State's proofs indicated that there had been some trouble between decedent and defendants, apparently because they believed he had "ratted" on them to the police. During the night of August 6/7, 1973 defendants were in the Vesuvius Bar in West New York, a tavern operated by decedent's father-in-law. They went into the back room of the tavern, where they began to play pool with decedent. Mrs. White observed Sheldrick remove from his pocket a sawed-off shotgun, which he pointed at her. When she remonstrated, he broke open the weapon and removed the shell. Sands took three shells from his pocket and placed them on the table. Sheldrick then inserted one of those shells into the shotgun. Shortly thereafter, while she was at the cash register, Mrs. White saw defendant draw a gun, aim it at her husband, and fire. Decedent leaped into the air and fell to the floor.
Police officers on routine patrol in the area heard a gunshot and observed smoke coming from the inside of the bar. A man, later identified as defendant Sands, emerged from the premises. The police saw him throw a weapon into a nearby alley. They placed him under arrest and then entered the tavern, where they apprehended Sheldrick as he was leaving the room with a sawed-off shotgun in his hand. Decedent's body lay on the floor. A subsequent autopsy revealed that death had resulted from a gunshot wound of the lower abdomen which had ruptured vital blood vessels, the intestines and the bladder.
Defendants argue, initially, that the trial judge, over objection, erroneously permitted the decedent's wife to testify to what he said to her moments after the fatal wound was inflicted. They contend that the statements were made "after an opportunity to deliberate and fabricate and was interspersed with other statements indicating a lack of nervous excitement." We find no merit in these assertions.
Mrs. White's testimony was heard by the trial judge in a preliminary inquiry outside the presence of the jury, pursuant to Evid. R. 8(1). She said that when she heard the
shot she ran over to her husband and asked, "Billy, are you all right?" He replied, "Get them out of here. Just get him out of here." He then requested her to call for an ambulance. She further testified as follows:
Q. And after he said that [the request for the ambulance] did he make any other statement? A. Yes. He told me, he said his, he said his ass felt on fire and he said give me a drink of beer before I die.
Q. And prior to his saying that did he indicate anything else as to what had happened? A. He had said he shot me.
Q. And after he said he shot me? A. He said it twice.
Q. He said he shot me twice. A. Yes.
Q. And this was seconds after the shot had gone off or after you heard ...