Matthews, Lora and Morgan. The opinion of the court was delivered by Lora, J.A.D.
Defendant was tried to a jury and found guilty of second degree murder of one Moe Cohen, guilty of illegal possession of a revolver and not guilty of atrocious assault and battery. He was sentenced to a term of 18 to 20 years on the murder charge and a concurrent term of one to two years on the weapon charge. His motion for a new trial was denied.
On appeal, defendant contends that (1) the trial judge erred by permitting defendant's wife to testify against him, (2) the prosecutor's remarks in summation were improper and highly prejudicial, (3) certain of the prosecutor's comments in summation were improper in that they were meant to penalize defendant's exercise of his constitutional right to confront the witnesses against him, (4) the trial judge erred by failing to charge voluntary manslaughter, (5) the trial judge erred by failing to advise the jury that the testimony of Albert Price should be carefully and cautiously
scrutinized because the State had agreed not to prosecute him for illegal possession of a weapon if he would testify against the defendant, and (6) the sentence is manifestly excessive and unduly punitive.
Shirley Eason, defendant's wife, over his objection, testified that she was working as a barmaid at Jay's Corner during the early morning of January 26, 1974. Albert Price was working with her as bartender. Shortly before closing time the owner of the tavern, Moe Cohen, came in to count the receipts. Cohen had a gun in his possession and put it near the register while he was counting the money. Defendant knocked on the door of the closed tavern and Price let defendant in. She was standing next to Cohen at the time. Defendant asked "What is going on?" and Price told him they were "trying to get out of here." Defendant then said "Come on, let's get out of here," and Mrs. Eason went into the back room to get her boots and bag, returned to the bar area and put on one of her boots.
Defendant's wife stated her husband then said she was "not working here anymore" and slapped her face. When Price asked defendant what the matter was, defendant told him to shut up, whereupon Mrs. Eason went into the ladies' room because she was embarrassed and crying. She then testified that a few seconds after she went into the ladies' room she heard a shot fired and heard Cohen say something that sounded like "Tommy, why?" Several more shots followed, but she could not estimate the time span. She was "just shaking, I guess, and I was frightened * * * I guess it was the slap and then when I heard the shots too." Following the shots, she heard the sound of bottles breaking and saw Price coming toward the ladies' room, his face full of blood, and repeating "I don't know what is wrong with this mother ."
Price then ran to the back door and when unable to open it, ran back into the bar area. Mrs. Eason could still hear bottles breaking and heard "like a moan or something" but could not identify the voice. She squeezed into the boiler
room and stayed there, during which time she heard bottles breaking, the closing of the front door and the sound of a vehicle which "sounded like my husband's truck" starting. A police officer came and got her out of the boiler room. Mrs. Eason also stated she had not seen a gun in Price's hand.
On cross-examination, Mrs. Eason denied that Cohen was "fooling around with [her]" or "patting her on the rear" while she was behind the bar, although she said she might not have felt him touch her since she was wearing a "very, very heavy" skirt.
Prior to the taking of any testimony defendant objected to his wife being called as a witness. The State asserted that since the testimony would reveal that defendant had committed an assault and battery upon Mrs. Eason during the incident, causing her to become afraid, she was competent as a witness under Evid R. 23(2)(b). Defendant countered that in the absence of a municipal court complaint charging him with the disorderly persons offense against his wife alleged by the State she was incompetent to testify against him. Relying upon his interpretation of State v. Briley , 53 N.J. 498 (1969), the trial judge ruled that so long as the spouse was in fact a victim or an intended victim of the entire event, the failure of the prosecution to initiate criminal proceedings or a complaint was immaterial. At this point the prosecutor added that defendant could well have been charged with assault and battery, but it was deemed a meaningless gesture in light of the pending indictments for murder, atrocious assault and battery and possession of a firearm.
Evid. R. 23(2)(b) provides, in pertinent part, that "[t]he spouse of the accused in a criminal action shall not testify in such action * * * unless * * * the accused is charged with an offense against the spouse." In State v. Briley, supra , our Supreme Court held that this ...