Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Botter, J.A.D.
[139 NJSuper Page 479] Defendants were convicted of second degree murder. The victim, Nathan "Dukie" Mitchell, was shot on a street in East Orange on February 16, 1972. With leave of the court, separate appeal briefs were filed for each defendant, and each asserts various errors in the trial judge's instructions to the jury.
The State offered evidence tending to support a case of felony murder. Alma "Dolly" Darci testified that she had given Dukie narcotics on credit; that shortly thereafter defendants approached Dukie, pushed him against a car and began going through his pockets. Dukie resisted and he was shot. She said that Gary Robinson had the gun, although there was testimony that Derek Van Austin had the gun earlier that evening.
Jimmy Johnson testified that he was with Alma Darci when he heard the shot. They were the State's principal witnesses. Johnson testified that they were walking side by side, talking, and upon hearing the shot he turned around and saw Dukie fall. Then defendants ran past them. There was evidence that Johnson and Darci were close associates who dealt in narcotics and knew defendants before this incident.
Both defendants testified. Gary Robinson said that he spent the day with Derek Van Austin; that Derek had a gun which he tried to use as security for a loan from Jimmy Johnson so that they could both buy heroin, but Johnson declined the offer. Robinson said that he took the gun from Derek intending to use it in negotiating for heroin. He also testified that earlier in the week he had "burnt" Dukie by taking $35 from him for heroin without delivering the goods. He said he did not see Dukie again until the night in question. He testified that Dukie approached him in anger, an argument ensued and he stepped back, displaying part of the gun to Dukie to scare him off. Instead, Dukie reached for the gun, the gun went off and Dukie fell. He and Derek ran to Derek's house. At that time Derek had the gun and Robinson arranged to have someone dispose of it.
Derek Van Austin testified that he was with Gary Robinson when Dukie approached in an angry manner. Robinson produced a pistol and Dukie grabbed for it. A struggle ensued, the gun went off and he ran from the scene. He said he did not join in the struggle and he denied having the
gun that night. He admitted using heroin in small quantities. Both defendants denied that it was Dukie who was supposed to deliver heroin to them. The State theorized that it was defendants who expected to receive heroin from Dukie and that they went after him to seize the heroin that he had obtained from Alma Darci.
The trial judge charged the jury on various principles of law, including murder, manslaughter, malice, aiding and abetting, misadventure, self-defense and the duty to retreat. Shortly after the jury began deliberating they asked to be reinstructed on the definition of first degree murder, second degree murder and manslaughter. Supplemental instructions were given and the jury resumed deliberations.
The next day the jury asked for additional instructions, namely, (1) the definition of aiding and abetting, (2) whether aiding and abetting can be applicable in second degree murder or manslaughter, and (3) the legal definition of malice. In response the court gave the following supplemental instructions:
If two or more persons act in concert in committing a criminal offense such as the one charged here, all who participate in the commission of the offense are equally guilty of this offense regardless of the part each took in the commission of the crime. Consequently, if a killing is brought about by the action of one of those involved, all who are acting in concert are guilty.
So that's the law with respect to aiding and abetting.
Now, with respect to the -- you asked for the definition of malice as I gave it to you. I stated that malice in its legal sense means nothing more than an illegal state of mind. The law presumes that all unlawful homicides, that is, all unlawful killings are committed with malice unless the ...