Allcorn, Morgan and Horn. The opinion of the court was delivered by Morgan, J.A.D.
[154 NJSuper Page 340] Convicted by jury of second degree murder, defendant appeals, contending that (1) the trial judge committed plain error in his charge on manslaughter when he failed to define the meaning of malice; (2) he should have granted defendant's motions for acquittal or judgment notwithstanding the verdict, and (3) the 10-15-year State Prison sentence was excessive.
Without going into extended detail concerning the incident which resulted in the death of William Staley, the following provides a summary of the evidence sufficient for consideration of the issues raised herein. Defendant and decedent Staley lived in the same apartment house, but in different apartments and on different floors; defendant lived with his brother Banks Wyatt, and Staley lived with one Eddie Pringle, one of the State's principal witnesses. Also living in the same apartment house, and in the apartment next to defendant's, was Emily Reed, then 13 years of age, with her mother Mabel Reed, both of whom were State's witnesses.
The State's evidence established that William Staley was killed by a stab wound in the abdomen, seven inches long, made by a kitchen knife which passed through decedent's body from the front and emerged from his back. This homicide followed a verbal dispute and physical scuffle between defendant and decedent, apparently about some trivial matter concerning boxes Eddie Pringle had given to defendant and which decedent wanted to remove. According to defendant, this argument, in which defendant received some scratches and some bites, lasted about seven or eight minutes, after which decedent and defendant parted, defendant returning to his apartment. Emily Reed, the 13-year old who lived in the apartment next to defendant's, heard "some fussing and fighting going on," looked out of her door and saw decedent and defendant "fighting or wrestling" and heard decedent tell defendant to "let me go." She thought decedent had gone downstairs after the dispute ended.
At that point Emily told defendant she was going to tell her mother that defendant had winked at her; defendant responded by throwing a fire extinguisher at her. Although defendant admitted throwing the fire extinguisher, he denied that it was thrown at Emily. A short time later Emily's mother returned to the apartment. On hearing her voice Emily opened the door to her apartment, saw her mother,
her mother's boyfriend, Abe Woodson, her sisters, decedent and defendant. Emily testified that as decedent walked past her she saw defendant stab him with a long knife which she had seen on an earlier occasion in defendant's apartment. After the stabbing, defendant dropped the knife.
Emily's mother denied seeing the stabbing. Eddie Pringle, decedent's roommate, testified that he saw defendant stab decedent. Defendant flatly denied doing so, admitting, however, that it was he who pulled the knife out. At no point during the trial, or thereafter, has defendant admitted that it was he who stabbed decedent.
After the stabbing, defendant left the building. When he was later picked up by police from a description, he had bloodstains on his clothing along with chemicals from the fire extinguisher. Testimony suggested that the knife belonged to defendant's brother Banks, although Banks denied its ownership.
As noted, defendant testified in his own behalf. His position was unequivocal; he was not the one who stabbed decedent and his testimony left room for conjecture, pursued during defendant's summation, that it was either Pringle or Woodson, Mabel Reed's boyfriend, both present at the scene, who was the culpable party.
By agreement in advance of trial, the State declined to seek a first degree murder conviction.
The case was submitted to the jury on the alternative theories of second degree murder and manslaughter and, of course, acquittal. After again asking for the testimony of Emily Reed and for a redefinition of murder and manslaughter, the jury returned a unanimous verdict of second degree murder.
We briefly reject defendant's contentions of error in the denial of his motions for acquittal and for judgment notwithstanding the verdict. The State's evidence was clearly sufficient for jury consideration of his guilt, and ample evidence ...