author: Carton, J. A. D.

text:
    LILLIAN M. KEELEY AND GEORGE J. KEELEY, PLAINTIFFS-RESPONDENTS, v. BIG W DISCOUNT SUPERMARKETS, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 14, 1970
    Decided January 25, 1971.
    Before Judges Contobd, Kolovsky and Cabton,

      Mr. Arnold G. Shurlcin argued the cause for appellant (Messrs. Arnold G. Shurlcin and William J. Pollinger on the brief; Messrs. Krieger ■& Klein, attorneys).

      Mr. Pranlc W. Thatcher argued the cause for respondents (Messrs. Moss, Thatcher & Mos's, attorneys).
   The opinion of the court was delivered by

Carton, J. A. D.

This case concerns the legal effect of an order granting additur in a negligence action. The order mandated that defendant accept the additur within 20 days or suffer a new trial as to damages only. Defendant first sought appellate review of the order and when review was denied attempted to exercise its option to accept the additur beyond the 20-day period.

The jury returned verdicts of $2500 and $1000 in favor of the injured plaintiff Lillian Keeley and her husband George Keeley, respectively. They moved for a new trial as to damages only. In ruling on the motion, the trial court, on July 30, 1970, ordered that, upon the filing of a written consent by defendant within 20 days, an amended judgment should be entered increasing the damage award for the wife to $7,500 and that of the husband to $3,000. The order further provided that, upon defendant’s failure to file written consent “as aforesaid,” an order should be entered granting plaintiffs’ motion for new trial as to damages only.

Defendant then sought leave to appeal the July 30 order. We denied that motion on September 17. A few days later defendant filed its consent to the entry of the judgment for the increased amounts. Insisting that the time for accepting the additur had expired, plaintiffs applied to the trial court for an order granting a new trial as to damages only. The court agreed and granted their application. It later denied defendant’s motion to vacate that order. We granted leave to appeal from the denial of the latter motion.

Defendant contends that its application for leave to appeal tolled the 20-day period permitted for acceptance of the addiiur in the July 30 order. On this thesis the option contained in the order remained viable until this court decided the motion for leave to appeal.

We disagree. The underlying theory oí the remittitur and addiiur practices contravenes such a rationale.

The addiiur and remiiiilur practices were described with approval in Fisch v. Manger, 24 N. J. 66, 72 (1957), as “enlightened aids in securing substantial justice between the parties without the burdensome costs, delays and harassments oí new trials.” Since the order granting an additur is on condition, its eileet is to confer an option upon the defendant. “The option of accepting an addiiur rests with a defendant and if defendant accepts it, the judgment should reflect the added sum without regard to plaintiffs [sic] wish.” Bitting v. Willett, 47 N. J. 6, 9 (1966). “[I]f the defendant thinks the addiiur too high, he may protect himself, for he has the absolute light to refuse to pay it and to take a new trial by jury instead, * * Moran v. Feitis, 69 N. J. Super. 531, 541 (App. Div. 1961), certif. den. 36 N. J. 299 (1962).

.But it must be observed that the opportunity given by the order to accept additur is limited to the terms specified in the order which creates that option. It cannot be deemed to remain open indefinitely. So to hold would do violence to the express language of the order. It would enlarge its terms beyond all recognition.

Here, instead of accepting the additur within the 20-day period prescribed by the order, defendant sought to appeal that order to this court. Not having accepted its terms before the expiration date, defendant must be considered to have exercised its option by the appeal and to have refused to pay the increased award. See 66 C. J. S. New Trial § 209g, at 527-528:

If the party having the option to remit a part of his recovery or submit to a new trial appeals from the order before the expiration of the time limited therein for the exercise of the option, he is deemed to have exercised Ms option by the appeal and to have refusd to remit, as is discussed infra subdivision h (1) of this section, and the appellate court, on affirming the order, will not revive the option by fixing a time within which the remittitur may be entered.

An additur is recognized to be “logically and realistically indistinguishable” from a remittitur. Fisch v. Manger, supra, 24 N. J. at 72.

Defendant has waived any further benefits under the conditional order. To conclude otherwise would contravene the rationale of these procedural devices. The salutary purpose of achieving substantial justice by a speedy and final resolution of the controversy would be defeated. The objectives of the additur and remittitur practices are the avoidance of additional expense, delay and inconvenience. Their aim is not only to save the trouble and expense of a new trial but also to give both parties the benefit of a prompt determination of the litigation without the necessity for the delay as well as the expense entailed by an appeal.

If a defendant appeals or applies for leave to appeal from such a conditional order, he must be deemed to have forfeited any benefits under it. Defendant’s appeal in the present case deprived plaintiffs of part of the benefit the additur intended to afford, i- e., immediate payment of the award without the burden of defending an appeal or being obliged to cross-appeal to safeguard their own position. Cf. Mulkerin v. Somerset Tire Service, Inc., 110 N. J. Super. 173 (App. Div. 1970). The fact that the procedure followed by defendant was by motion for leave to appeal and that the resulting delay was not extended because of denial thereof should not make any difference in the result.

The concept of a conditional acceptance is essentially the underlying basis of defendant’s position. Such a procedure is allowed in the courts of some states under specific statute or rule. See Annotation, 16 A. L. R. 3d 1327, 1332—1337 (1967). No such procedure exists in this State.

In view of our conclusion, we need not consider defendant’s argument that the time for acceptance of the additur should be deemed tolled by analogy to the tolling of time for appeals under R. 2:4-3(e).

Our determination does not deprive defendant of the right to assail the trial court’s order. That order was interlocutory in nature. If the outcome of the new trial on damages is deemed unsatisfactory, defendant may then challenge the propriety of the order granting the new trial in conjunction with an appeal on the merits.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD P. NUNN AND JOHN NUNN, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 30, 1970
    Decided January 25, 1971.

      Before Judges Confoed, Kolovsky and Caeton.

      Mr. Alfred A. Faxon argued the cause for appellants (Mr. Cornelius P. Sullivan, assigned counsel).

      Mr. Alfred M. Bitting, Assistant Prosecutor, argued the cause for respondent (Mr. Norman Shabel, Assistant Prosecutor, on the brief; Mr. Dominick J. Ferrelli, Burlington County Prosecutor, attorney).
   The opinion of the court was delivered by

Carton, J. A. D.

The brothers Nunn appeal their convictions for carnal abuse of a 14-year-old girl. The State’s proofs tended to show that the offenses occurred in defendants’ automobile sometime after 2 a.m. on November 7, 1968 in a field behind the Nunn home.

The indictment charged defendants with having committed the offenses on or about the 7th day of November 1968. Defendants invoked no discovery proceedings to require the State to specify the time the offenses occurred. On the other hand, the State duly served on each defendant a demand for particulars as to any alibi defense. Neither demand was ever answered.

The sole issue involved is the propriety of the exclusion of certain testimony supporting defendants’ alibi.

In their defense, defendants admitted that the victim had been riding in the car with them earlier in the evening, but claimed that they had left her by about 11 p.m. and sat drinking beer in their ear in back of their home until about 11:30 p.m. when they went to bod. Defendants now argue that it was reversible error for the trial court to exclude proffered testimony of the mother and sister of defendants to the effect that the brothers were observed going upstairs to bed about 11:30 p.m. on November 6.

At the outset of the trial the prosecutor Learned for the first time that defendants intended to call their mother and sister to corroborate their claim that they had come into the house and gone to bed at 11:30 p.m. The State moved to exclude this proposed alibi testimony on the ground that defendant had not complied with R. R. 3:5-9 (now R. 3:11-1) after being duly served with demand for particulars. The motion to exclude this testimony was granted. However, the mother and sister were permitted to testify that they had gone to bed at 11:30 p.m. and at that time knew the defendants to be present on the premises. At one point in her testimony the mother stated that she was still in the living room lying on the couch when her son Richard came into the house and went to bed. An objection to the question which elicited that information was sustained after she gave her reply. However, the jury was not told to disregard the answer.

Defendants contend that the proposed testimony of the two witnesses was not evidence of alibi but circumstantial evidence not encompassed by the rule. More precisely, defendants' argument is that they were not obliged to specify witnesses who had only circumstantial knowledge of defendants' whereabouts at the moment of the commission of the offense.

In State v. Baldwin, 47 N. J. 379, 389-390 (1966), cert. den. 385 U. S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966), the court alluded to but left unanswered the question of the applicability of the notice requirement to circumstantial evidence concerning alibi. Defendants' position finds support in State v. Rogers, 30 N. J. Super. 239 (Cty. Ct. 1954). In concluding that the rule is not applicable, that court noted that “[t]he State could not comply with defendant’s demand without giving him a list of all its witnesses, and in relation to every aspect of its circumstantial case." Id. at 240.

Rogers was decided before the advent of extensive mutual discovery in criminal cases (see R. R. 3:5-ll then in force, replaced by R. R. 3:5-11 (now R. 3:13), adopted September 26, 1967) and without the benefit of judicial decisions expanding the limits of criminal discovery, (e. g., State v. Montague, 55 N. J. 387 (1970); Jones v. Superior Court, 58 Cal. 2d 56, 22 Cal. Rptr. 879, 372 P. 2d 919 (Sup. Ct. 1962). In view of the present state of the law as to discovery in criminal cases, a contrary result from that expressed in Rogers is compelled.

Mutual discovery procedures are not an innovation. New Jersey first adopted the alibi notice requirement in the form of a statute in 1934 (R. S. 2.190-7). This jurisdiction, as did most others, strictly construed the provisions of the act as being in derogation of the common law. State v. Wiedenmayer, 128 N. J. L. 239 (Sup. Ct. 1942). As the desirability of reciprocal discovery was realized, this and other jurisdictions expanded and modernized the available procedures.

The constitutional propriety of rules or statutes which require a defendant to supply the prosecution with the particulars of a proposed alibi can no longer be questioned. Williams v. Florida, 399 U. S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); State v. Angeleri, 51 N. J. 382 (1968), cert. den. 393 U. S. 951, 89 S. Ct. 372, 21 L. Ed. 2d 362 (1968). The underlying purpose of such a notice requirement and its consonance with the requirements of due process in a criminal trial find expression in the following quotation from Williams:

We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of “due process” or a “fair trial.” Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of States. The adversary system of trial is hardly an end to itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as “due process” is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence, [at 90 S. Ct. at 1890, 20 L. Ed. 2d 4501

In the absence of a pretrial notice requirement, the Constitution would not bar the granting of a continuance on the ground of surprise if a previously unknown alibi witness was called. In Williams the Supreme Court went on to say that if utilizing a continuance was permissible under the Constitution, “then surely the same result may be accomplished through pretrial discovery * *

Nothing in the Eifth Amendment privilege entitled a defendant, as a matter of constitutional right, to await the end of the State’s ease before announcing the nature of his defense.

The rationale enunciated in Williams exemplifies “the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” Dennis v. United States, 384 U. S. 855, 870-871, 86 S. Ct. 1840, 1849, 16 L. Ed. 2d 973 (1966); see also State v. Montague, supra. No defendant has any constitutional guarantee of “a right so to defend as to deny the State a chance to check the truth of his position.” State v. Angeleri, supra, 51 N. J. at 385. Simply put, the notice requirement “only compelled [a defendant] to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information which [he] from the beginning planned to divulge at trial.” Williams v. Florida, supra, 90 S. Ct. at 1898, 26 L. Ed. 2d at 452. An accused gives up nothing by enforcement of the notice requirement while the judicial system is afforded a better opportunity to determine the ultimate truth of the charge.

The question remains as to whether circumstantial evidence of alibi can fairly be said to come within the confines of the notice requirement. R. 3 .11-1 reads:

If a defendant intends to rely in any way on an alibi, he shall on written demand of the prosecuting attorney and within 10 days thereafter, furnish a written bill of particulars, signed by him, stating the speeifie place or places at which he claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish suoh alibi. Within 10 days after receipt of such bill of particulars from the defendant, the prosecuting attorney shall, on written demand, furnish the defendant or his attorney with a written bill of particulars stating the names and addresses of the witnesses upon whom the State intends to rely to establish defendant’s presence at the scene of the alleged offense. The trial court may order the amendment or amplification of such particulars, or of the time of their service, as the interest of justice requires. [Emphasis added]

“Alibi” literally means “elsewhere; in another place.” State v. Mucci, 25 N. J. 423, 431 (1957). In Mucci the court said: “The defense of alibi has its evidential efficacy in the physical impossibility of the accused’s guilt; and where the offered evidence does not meet this standard, the defense of alibi is not sustained.”

Our courts have recognized that proof designed to show alibi is not an offer of an affirmative issue advanced by the defense, but simply the showing of facts inconsistent with an essential element of the criminal charge. This concept was cogently expressed in State v. Garvin, 44 N. J. 268 (1965) :

Alibi is not a separate defense. It is part and parcel of a direct denial of the State’s charge whenever the defendant’s physical presence at a given time and place is a critical part of the prosecution’s case, [at 278]

R. R. 3:5-9 (now R. 3:11) was adopted, as Chief Justice Weintraub further points out in Garvin,

* * * not on the thesis that alibi is a separate defense as distinguished from a denial of a part of the ease the State must prove, but rather to avoid surprise at trial by the sudden introduction of a factual claim which cannot bo investigated unless the trial is recessed to that end.

Considering the language of the rule, the essence of “alibi” itself and the fact that the notice requirement in no way invades the protection afforded a defendant, we conclude that the notice requirement is sufficiently broad so as to include witnesses circumstantially corroborative of alibi. The rule in plain terms warns an accused that if he “intends to rely in any way on an alibi, he shall * * * furnish a written bill of particulars * * * stating the specific place or places at which he claims to have been * * * and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.”

Whether the testimony of the proposed witness shows directly that a defendant was not physically present at the precise time and place of the alleged offense, or does so only inferentially, its purposes and objectives are the same. The difference is the weight and degree of persuasiveness attributed to that testimony by the jury. There is no less reliance by defendant on such testimony nor less need for notice by the State that it will be offered.

Our conclusion is fortified by the recent extensions of reciprocal discovery in criminal prosecutions in both the form of court rules (see R. 3:13) and judicial decision (see State v. Montague, supra; see also Jones v. Superior Court, supra; People v. Damon, 24 N. Y. 2d 256, 299 N. Y. S. 2d 830, 247 N. E. 2d 651 (Ct. App. 1969)).

The omission of the exact time of the offense in the indictment should not bar the applicability of a notice requirement since ample discovery procedures exist through which such information is readily obtainable. We conclude, therefore, that the proffered testimony is within the notice requirement of R. 3 :11 and subject to the sanction of R. 3 :11—2.

Defendants argue that even if the trial court was empowered to order the exclusion of the testimony of defendants’ mother and sister, it abused its discretion in doing so under the circumstances of this case.

The defense knew from the outset what the State’s position was as to the time and place of the offense charged. If it be assumed that counsel did not know of the alibi witnesses so as to allow a timely compliance with the State’s demand, this circumstance does not excuse the failure to give any notice at all. Defense counsel was aware of these two witnesses at least one week prior to trial but made no attempt to notify the prosecutor.

Although the procedure of adjournment to allow the State the opportunity to investigate the proposed witnesses might have been followed, State v. Garvin, supra, 44 N. J. at 272, no request for an adjournment was made.

We conclude that the action of the trial court was not so clearly unreasonable in the light of the surrounding circumstances as to warrant interference on the ground of an abuse of discretion. Some evidence supporting the alibi was before the jury. Although the witnesses were precluded from specifically testifying that the brothers went to bed at 11:30 p.m., evidence of that fact came into the case by clear inference. We see no prejudice to defendants due to the formal exclusion of this particular testimony.

Affirmed.


author: Mountain, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RAYMOND KELLY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 4, 1971
    Decided January 28, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Jerrold 8. Fond argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Joseph A. Fusco, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Mountain, J. A. D.

Defendant appeals from a conviction following a jury verdict of guilty of larceny of a revolver under N. J. S. A. 2A:119-2.

The revolver was allegedly stolen from Walter King, a security guard employed by State Patrol Service, Inc., a private agency. About two weeks after the theft, King, accompanied by two other employees of the same agency, encountered defendant at about 1:30 a.m. on Charlton Street in Newark in front of an abandoned house. King and at least one o£ his companions wore security guard uniforms. Defendant confessed to the theft of the revolver, but only, according to his testimony, after one of the men had twisted his arm behind his hack and he had become frightened.

Defendant claimed that his inculpatory statement, a definite confession of guilt, had been extracted from him involuntarily by the use of force and coercion. Ilis counsel requested a hearing out of the presence of the jury to determine the admissibility of the confession. The request was denied. This was error and requires reversal. Evidence Rule 8(3) provides that,

In the ease of a statement against the penal interest of the defendant on trial in a criminal proceeding, the judge, if requested, shall hear and determine the question of its admissibility out of the presence and hearing of the jury. In such a hearing the rules of evidence shall apply and the burden of proof as to admissibility of the statement is on the prosecution. If the judge admits the statement he shall not inform the jury that he has made a finding that the statement is admissible, and he shall instruct the jury that they are to disregard the statement if they find that it is inadmissible under the rules of law pertaining to such statements. The judge shall strike the statement from the record and instruct the jury to disregard it if he subsequently determines that a jury could not reasonably find that the statement was admissible. [Emphasis supplied]

This rule embodies a requirement of constitutional dimension. In State v. Yough, 49 N. J. 587, 599 (1967), Justice Jacobs pointed out that “In Jackson v. Denno, 378 17. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), the Supreme Court announced a constitutional rule that a jury is not to hear of a confession nntil the trial judge has determined that it was freely and voluntarily given.’ Sims v. Georgia, 385 U. S. 538, 87 S. Ct. 639, 643, 17 L. Ed. 2d 593, 598 (1967).” Under our evidence rule set forth above the voluntariness of the confession must also be tested by the jury. This should have been explained in the court’s charge.

Defendant has further argued that his incriminating statement should have been excluded since he was not first given the warnings laid down in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We agree with the trial court that under the circumstances here present Miranda had no application. The authorities appear to be m substantial agreement that unless the interrogator possesses law enforcement authority bestowed by some arm of government, Miranda will not apply. In each of the following cases it was held inapplicable: People v. Frank, 52 Misc. 2d 266, 275 N. Y. S. 2d 570 (Sup. Ct. 1966) (questioning by store security guards); Schaumberg v. State, 83 Nev. 372, 432 P. 2d 500 (Sup. Ct. 1967) (interrogation by supervisors of gambling casino); McElroy v. State, 204 So. 2d 463 (Miss. Sup. Ct. 1967) (questioning of suspect by theft victim); State v. Rodgers, 251 La. 953, 207 So. 2d 755 (Sup. Ct. 1968) (questioning by employee of theft victim while aiding police investigation); State v. Little, 201 Kan. 94, 439 P. 2d 387 (Sup. Ct. 1969) (interrogation by theft victim — police officer present); State v. LaRose, 286 Minn. 517, 174 N. W. 2d 247 (Sup. Ct. 1970) (questioning by victim making citizen’s arrest while awaiting police). In Pratt v. State, 9 Md. App. 320, 263 A. 2d 247 (1970), however, where the interrogating security officer had been “sworn as a state officer by the State of Maryland, by the governor of Maryland as a police officer to protect the property of Montgomery Wards,” the requirements of Miranda were held to apply. There is nothing in the record before us to show that Walter King and his colleagues held any authorization to act as public law enforcement agents.

Reversed and remanded for a new trial.


text:
    FILOMENA C. RAPONOTTI, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF NICHOLAS RAPONOTTI, DECEASED, AND FILOMENA C. RAPONOTTI, GENERAL ADMINISTRATRIX OF THE ESTATE OF NICHOLAS RAPONOTTI, DECEASED, PLAINTIFF-APPELLANT, v. BURNT-MILL ARMS INC., A NEW JERSEY CORPORATION, AND PAPARONE & COMPANY, A NEW JERSEY CORPORATION, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 5, 1971
    Decided January 25, 1971.

      Before Judges KiLKEJvxy, ILalpeiín and Laüste.

      Mr. Ira Babkin argued the cause for appellant (Messrs. Molotsky, Babkin & Gross, attorneys).

      Mr. Arthur Montano argued the cause for respondents (Messrs. Kisselman, Devine, Deighan & Montano, attorneys).
   The opinion of the court was delivered by

Halpern, J. A. D.

Plaintiff administratrix ad prosequendum and general administratrix of the estate of Nicholas Baponotti, deceased, appeals from a judgment of no cause for action entered on a jury verdict in favor of defendant Burnt-Mill Arms, Inc. The suit sought to recover money damages for the death by drowning of plaintiff’s husband in a swimming pool owned and operated by defendant. A consent judgment of dismissal, with prejudice, was entered in favor of defendant Paparone & Company.

The essential facts are undisputed and will be summarized for an understanding of the issues involved. In 1966 defendant built and was the owner of a 112-family garden apartment complex in Voorhees Township, Camden County, New Jersey. Dolores Tarrieone was one of its tenants. As part of the recreational facilities furnished to all tenants, defendant had installed an outdoor swimming pool 24 feet wide at the deep end, 35 feet wide at the shallow end, and about 50 feet in length, with a maximum depth at one end of 6 feet 4 inches. The pool did not contain a diving board. It was completely enclosed by a wire fence, except for a gate opening leading to the pool. A small building, designated as a recreation hall, was located outside of the gate and was provided by defendant for the tenants and their guests to bo used in conjunction with the pool. The pool was illuminated for night bathing with outdoor lights and underwater lights, and contained signs on or near the fence indicating the pool was “private” and “swim at your own risk.”

The written regulations promulgated by defendant pertaining to the use of the pool, which were delivered to all tenants, and with which we are concerned, provided that the pool would be open daily until 11 p.m., except for Eridays and Saturdays when it would remain open until midnight. Each tenant was permitted to bring a maximum of four guests without prior approval by defendant. On prior arrangement with defendant a tenant could bring an unlimited number of guests for a special pool party; on such occasions the pool facilities could be used until 2 a-m. The defendant knew it was customary for the tenants and their guests to use the recreation hall, bring their own food, liquor and other beverages.

Admittedly, defendant never furnished a lifeguard for the pool or any appliances for lifesaving resuscitation. No separate charge was imposed for the use of the pool and its facilities beyond the rent charged. The owner controlled and maintained the pool.

On August 11, 1966 Dolores Tarricone, having reserved the pool for a party in accordance with defendant’s regulations, was hostess to about 30 adult guests, including plaintiff’s decedent, Nicholas Raponotti. Decedent was in good health and was an average swimmer. He participated in> the festivities; he ate, drank and swam. The testimony of those witnesses present that night who were called to testify indicated that no one was intoxicated. Although there were guests in and around the pool who spoke with decedent about five or ten minutes before his body was discovered in the deep end of the pool, no one saw him enter the pool and no one knew what happened to him.

One of the guests recovered decedent’s body from the pool and for about one-half hour various guests attempted artificial respiration. One of the guests testified, without objection, that a nurse who was present examined decedent and detected a faint pulse; she then gave instructions on how to administer mouth-to-mouth resuscitation, which was also performed. An ambulance arrived within one-half hour after decedent’s body was retrieved and oxygen was then administered. Decedent was dead on arrival at the hospital. An autopsy was performed. It is admitted that decedent died as the result of drowning and that he had .15% alcohol in his blood.

The complaint charged defendant with negligence in the operation of the pool in failing to provide a lifeguard and appliances or equipment for lifesaving and resuscitation. The trial was on the issue of liability only. The court submitted the following three interrogatories to the jury:

INTERROGATORIES
No. of No. of YESES NOES
1. DO YOU FIND THAT THE DEFENDANT BURNT MILD ARMS, INO. WAS GUILTY OF NEGLIGENCE IN FAILING TO PROVIDE A LIFEGUARD TO BE PRESENT
DURING THE PARTY? 2 10
2. IF YOUR ANSWER TO THE ABOVE IS IN THE AFFIRMATIVE BY A VOTE OF 10 OR MORE, DO YOU FIND THAT SUCH NEGLIGENCE PROXIMATELY CAUSED THE DEATH OF DECEDENT?
3. IF YOU FIND BY A VOTE OF 10 OR MORE THAT SUCH NEGLIGENCE PROXIMATELY CAUSED THE DEATH OF DECEDENT, THEN DO YOU FIND THAT THE DECEDENT WAS GUILTY OF CONTRIBUTORY NEGLIGENCE WHICH PROXIMATELY CONTRIBUTED TO HIS DEATH?

The jury answered the first interrogatory “ISTo” by a 10-2 vote, and did not answer the remaining interrogatories. The court then entered a judgment of no cause for action in defendant’s favor. Plaintiff’s motion for a new trial was denied, and this appeal followed.

The principal issue presented is whether the court erred in holding that the provisions of N. J. S. A. 26 :4A-1 were inapplicable and in refusing to charge the jury in accordance therewith. The statute, which was enacted in 1946 but has never been directly construed in any reported opinion, provides :

Life-Saving Personnel and Appliances Required
Every person operating a swimming pool or public swimming place, directly or indirectly, for profit shall provide adequate trained personnel and proper appliances for life-saving and resuscitation at all times when the pool or place is open to the public.

The court held the statute inapplicable because it determined the pool involved here was a private pool as distinguished from a public pool. We have concluded the court placed too narrow a construction on the statute. Under the court’s interpretation, the statute applied solely to operators of swimming pools or public swimming places who catered to the general public and made a separate monetary charge for the use of the facilities.

An inquiry into the objective of the Legislature is hazardous at best. Our function is to arrive at the legislative intent by considering the nature of the subject matter, giving the statutory words used their ordinary and primary meaning, and looking to the provisions of the whole law and not to a single sentence or member of a sentence in ascertaining its objective and policy. Richards v. United States, 369 U. S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962); State v. Brown, 22 N. J. 405, 415 (1956); Kingsley v. Hawthorne Fabrics, Inc., 41 N. J. 521, 526 (1964); State v. Bander, 56 N. J. 196, 202 (1970). Viewed in that light, it becomes clear that the Legislature recognized the inherent danger to people who swim in pools or public swimming places where conceivably large numbers may congregate for that purpose. It sought to protect such people in situations where the owner, directly or indirectly, operated the venture for profit. It therefore required such operators to “provide adequate trained personnel and proper appliances for life-saving and resuscitation” when the pool was in use. In construing the word “public” as used in N. J. S. A. 26 :4A-1 it must be given a broad definition so as to include the people the Legislature intended to protect from dangers it considered inherent in this type of operation. As indicated in Askew v. Parker, 151 Cal. App. 2d 759, 312 P. 2d 342 (Cal. Ct. App. 1957) :

A pool may be public although all persons do not have a right to be admitted, and a pool may be public even though certain persons can be legally excluded from it. Whether a charge is made for admission is not necessarily a determining factor, [at 345]

ín the instant case 112 tenants and their guests had the privilege of using the pool. While it was highly improbable that all the tenants would make use of it at the same time, it was very probable that a good number of them would do so during the hot summer weather.

It would be naive for us to hold that defendant’s tenants were not charged for the use of the pool and its facilities; such compensation was reflected in the rent charged. This is what the Legislature contemplated when it spoke of operating a swimming pool directly “or indirectly” for profit. The pool was part of defendant’s over-all garden apartment operation from which its profits (or losses) were derived.

We agree with the views expressed in other jurisdictions that a swimming pool, for all practical purposes, may be a “public pool” even though no separate fee is charged for its use by guests or members and the general public is excluded. See annotations in 48 A. L. R. 2d 104 (1956) and 1 A. L. R. 3d 963-968 (1965); Rovegno v. San Jose Knights of Columbus Hall Assoc., 108 Cal. App. 591, 291 P. 848 (D. Ct. App. 1930) (a private club pool); Tucker v. Dixon, 144 Colo. 79, 355 P. 2d 79 (Sup. Ct. 1960) (motel pool); Gordon v. Hotel Seville, Inc., 105 So. 2d 175 (Fla. App. 1958), cert. den. 109 So. 2d 767 (Snp. Ct. 1959) (hotel pool).

We construe N. J. S. A. 26:4A-1 to exclude from its provisions only such swimming pools or public swimming places maintained for use by a family and its guests. See Lucas v. Hesperia Golf & Country Club, 255 Cal. App. 2d 241, 63 Cal. Rptr. 189 (D. Ct. App. 1967), where a comparable California statute was held applicable to a private country club and where a regulation of the state board of health made the statute applicable to swimming pools at apartment houses (among other categories).

In the instant case the court charged the jury that defendant owed the duty to decedent, an invitee, to exercise reasonable care for his safety, and that plaintiff had the burden of proving that the failure to have a lifeguard at the pool was actionable negligence. In general terms this charge conformed to the law set forth in Ross v. The Breakers, Inc., 134 N. J. L. 489 (E. & A. 1946); Gluckauf v. Pine Lake Beach Club, Inc., 78 N. J. Super. 8 (App. Div. 1963), and McLaughlin v. Rova Farms, Inc., 56 N. J. 288, 303 (1970). In none of the cited cases was N. J. S. A. 26:4A-1 mentioned or discussed.

Having determined that decedent was one of the class for whose benefit N. J. S. A. 26:4A-1 was enacted to establish a standard of conduct, the court should have instructed the jury that they could infer negligence from a violation of the statute if the breach thereof was the efficient or proximate cause of the accident. Evers v. Davis, 86 N. J. L. 196 (E. & A. 1914); Daniels v. Brunton, 9 N. J. Super. 294 (App. Div. 1950), aff’d 7 N. J. 102 (1951); Moore’s Trucking Co. v. Gulf Tire & Supply Co., 18 N. J. Super. 467, 472 (App. Div. 1952), certif. den. 10 N. J. 22 (1952); Phillips v. Scrimente, 66 N. J. Super. 157, 163 (App. Div. 1961); Michaels v. Brookchester, Inc., 26 N. J. 379, 386 (1958); McCarthy v. Nat’l. Ass’n for Stock Car Auto Racing, Inc., 87 N. J. Super. 442 (Law Div. 1965), aff’d 90 N. J. Super. 574 (App. Div. 1966), aff’d 48 N. J. 539 (1967). The failure to charge in the manner indicated requires a reversal of the judgment and a remand for a new trial.

Since a new trial is mandated, we deem it advisable to discuss two other issues presented on this appeal which will probably reoccur at the new trial. In connection with the defense of contributory negligence, the court in its charge referred to the .15% alcohol in decedent’s blood and charged the jury:

Now, there is a presumption in this matter which I think is applicable If there is, at the time, 0.15 per cent or more, by weight of alcohol in a person’s body, it is presumed that person was under the influence of intoxicating liquor. This, Ladies and Gentlemen of the Jury, is a presumption. It is not a conclusive presumption. And with respect thereto, you say, what is a presumption. A presumption is a rebuttable assumption of fact resulting from a rule of law which required such fact to be assumed from any other fact or a group of facts found or otherwise established in the acts. That is a presumption. Now, wherever evidence is presented contrary to the presumed fact, that the existence or non existence of such a fact is for you to determine, members of the Jury, and the evidence which may be presented contrary to the presumed fact can be elicited during the cross examination of the witness who testified.
Therefore, in this ease, from all the evidence that may have been presented during the course of this trial with respect to the presumed fact of intoxication by reason of the alcoholic content in the blood stream of the decedent, is for your determination, and you shall decide whether that presumed fact exists or does not exist, concerning the fact that the decedent in this matter was under the influence of intoxicating liquor.

The court was obviously referring to the presumption drawn in prosecutions for drunken driving in violation of N. J. S. A. 39:4-50.1(3) in effect when this incident occurred. This statutory presumption is applicable only to prosecutions under N. J. S. A. 39 :4-50 et seq., and not in civil suits for damages based on negligence. This charge should not be repeated at the retrial. See Carroll v. Houtz, 93 N. J. Super. 215, 224 (App. Div. 1966).

Finally, plaintiff contends the court should have admitted into evidence section 14.2 of the Swimming Pool Code, adopted in 1955 (amended 1970) by the New Jersey State Department of Health and which provided:

Lifeguards — at least one (1) senior lifeguard sliall be on duty at all times who bolds as a minimum, a valid Senior Lifeguard Certificate issued by the American Red Cross, or Y.M.C.A. or other equivalent rating. Other lifeguards required to be present and on duty while the pool is open for business shall be based primarily upon the number of patrons present at any time.

In connection with this issue it is significant that N. J. S. A. 26 :4A.-2 authorizes “The State Department of Health [to] establish reasonable rules and regulations to carry out the provisions of this act.” Such was done in 1955 when the State Department of Health adopted “The New Jersey Swimming Code.” It, in turn, suggested that local boards of health adopt the code in full, as authorized by N. J. S. A. 26:3-69.1 to 69.6. Admittedly, the board of health of Voorhees Township had not adopted the state code as of the date of decedent's death. The court determined that the state code was not a “safety code” and therefore not admissible.

Plaintiff's expert, Timothy Wade, testified that good safety practice required a competent lifeguard to be on duty at defendant's pool. We have concluded that the New Jersey Swimming Code, among other things, is a “safety code” since it purports to establish and suggest various standards for the operation of swimming pools coming within the purview of N. J. S. A. 26 :4A-1, and was prepared by the State Department of Health authorized by law “to establish reasonable rules and regulations to carry out the provisions of this act.” N. J. S. A. 26 :4A—2. When promulgated such rules and regulations are presumed reasonable and valid. McCormick, Evidence § 309, at 641 (1954). As indicated by Justice Brandeis in Thompson v. Consolidated Gas Utilities Corp., 300 U. S. 55, 69, 57 S. Ct. 364, 371, 81 L. Ed. 510 (1936). “It is settled that to all administrative regulations purporting to be made under authority legally delegated there attaches a presumption of the existence of facts justifying the specific exercise.” Thus, such regulations are some evidence of the proper standard of care. See annotation in 75 A. L. R. 2d 778 (1961); Swank v. Halivopoulos, 108 N. J. Super. 120, 126-127 (App. Div. 1969), certif. den. 55 N. J. 444 (1970); Steffes v. Farmers Mutual Auto Ins. Co., 7 Wis. 2d 321, 96 N. W. 2d 501, 508 (Sup. Ct. 1959). At the retrial, if the appropriate foundation is laid through expert testimony, the relevant portions of the state code should be admitted in evidence to corroborate the expert’s opinion. McComish v. De Soi, 42 N. J. 274, 282 (1964) ; Foutch, “Admissibility of safety codes, rules and standards in negligence cases,” 37 Tenn. L. Rev. 581 (1970).

We point out, without commenting thereon, that the state code in defining the term “swimming pool,” excludes pools maintained for use by individual families and their guests. We note this because of what we said in interpreting the applicability of N. J. S. A. 26 :4A-1 to defendant, and the holding in Lucas v. Hesperia Golf & Country Club, supra.

One issue occurs to us which should be mentioned, although it was not raised by either of the parties and was not argued on the appeal. The interrogatory submitted merely asked the jury to determine whether defendant was negligent in failing to provide a lifeguard. When the jury answered the inquiry in the negative the court entered a judgment of no cause for action based solely on that answer. It seems to us that the jury may have determined, if given an opportunity to do so, that defendant was negligent in some other regard — e. g., not having essential lifesaving equipment. On the retrial, if interrogatories are submitted to the jury, they should be so worded that the ultimate issues are fully answered, so as to enable the trial judge to properly enter judgment.

Eeversed and remanded for a new trial.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH WINSTON WASHINGTON, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 18, 1971
    Decided January 26, 1971.

      Before Judges Coneoed, Koeovsky and Carton.

      Mr. Samuel Epstein argued the cause for appellant.

      Mr. Arthur V. Guerrera, Assistant Prosecutor, argued the cause for respondent (Mr. Robert M. McAllister, Jr., Atlantic County Prosecutor, attorney; Mr. Ernest M. Curtis, Assistant Prosecutor, of counsel and on the brief).
   Per Curiam.

The appeal challenges the exercise of discretion by the trial court in imposing a 5-10-year sentence on defendant on conviction of possession of heroin consecutive to terms then being served, 2 to 4 years for possession of heroin, and 1 to 2 years for resisting arrest. We affirm.

Even considering the defendant technically not to be a second offender for purposes of the added punishment permitted by the statute in the ease of a second offender, the judge had the right within his sentencing discretion nevertheless to consider the whole background of the defendant including prior convictions. There is no reason to abridge that right by mere reason of the prohibition against using the statutory scale of increased punishment in a case where the defendant’s conviction for the former offense took place after the current offense was committed. Eor this purpose it makes no difference whether the current offense took place before or after the conviction of the prior offense, so long as the convictions for both offenses were a matter of record before the current sentencing. There is nothing in either State v. Booker, 88 N. J. Super. 510 (App. Div. 1965), cert. den. 384 U. S. 944, 86 S. Ct. 1472, 16 L. Ed. 2d 543 (1966), or State v. Johnson, 109 N. J. Super. 69 (App. Div. 1970) to the contrary.

Judgment affirmed.


author: Lane, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WALLACE SOLOMON ODOM, DEFENDANT-APPELLANT, AND ALFRED RAVENELL, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued January 19, 1971
    Decided January 27, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Richard T. Sweeney, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley G. Van Ness, Public Defender, attorney; Mr. Joseph A. Abbott, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Nison P. Kendall, Assistant Prosecutor, argued the cause for respondent {Mr. Karl Asch, Union County Prosecutor, attorney; Mr. Kendall, on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Odom appeals from an order denying his second petition for post-conviction relief.

On June 13, 1963 he was found guilty of murder in the first degree of two persons with recommendations for life imprisonment and sentenced to concurrent life sentences. Ravenell appealed the conviction. The facts surrounding the crimes are set forth in the opinion of the Supreme Court and need not be repeated here. State v. Ravenell, 43 N. J. 171 (1964), cert. den. 379 U. S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965).

Before us it is argued that it was error for the trial court to fail to hold a plenary hearing “to determine the merit of the defendant’s petition in violation of his due process rights as guaranteed by Fourteenth Amendment to the Federal Constitution.” If the defendant means an evidentiary hearing, we do not agree as will be seen later. If the defendant means a hearing at which each ground for relief is considered, we do agree.

The order appealed from states that the application is barred under R. 3:22-4. The fact that the defendant had brought an earlier petition for post-conviction relief is not in itself sufficient reason to deny the present petition, unless the prior adjudication was upon the merits of the issues now urged (R. 3:22-5) or unless the present petition does not fall within the exceptions in R. 3 :22-4. State v. Johnson, 43 N. J. 572 (1965), aff’d 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966); cf. State v. Pohlabel, 40 N. J. Super. 416, 422 (App. Div. 1956). The trial court did not set forth any findings of fact or conclusions of law as required by R. 1:7-4. Petitions fox post-conviction relief cannot be disposed of out of hand. Bather than remand, we will exercise original jurisdiction to determine the matter. R. 2 :10-5.

The grounds set forth in the petition are (verbatim):

(1) Defendant was illegally arrested on July 21, 1962, without a warrant and detained by the Elizabeth Police Department and consequently the confession (State’s Item 9 for Identification) was unlawfully obtained and not admissible into evidence.
(2) The defendant was not advised that he was a suspect and was not offered or furnished counsel prior to the making of any confession and therefore the confession was obtained in violation of the defendant’s Constitutional rights and therefore invalid and not admissible in evidence. Defendant relies on Culombe v. Connecticut, 367 U. S. 568 (1961) case and Watts v. Indiana, 338 U. S. 49, at 58-59 (1949) case.
(3) Petitioner’s rights were substantially denied under the Constitution of the United States or the Constitution or the laws of the State of New Jersey in that petitioner was denied the right of a fair trial so guaranteed, resulting from the highly improper instructions to the jury by the trial judge, which instructions invaded the exclusive province of the jury.
(4) The said sentences is harsh, cruel, excessive and contrary to the defendant’s rights under the Constitution of the United States and that of the State of New Jersey.
(5) The defendant was denied his Constitutional right to file and prosecute an appeal from defendant’s June 1963 conviction and sentence, all contrary to the fair administration of criminal justice and due process of law.
(6) It is claimed that the defendant in this case was denied due process of law. It is further claimed that a denial of the relief would be contrary to fundamental justice or to the Constitution of the State of New Jersey. That the contentions of the petitioner is completely supported by either the law or the facts in the case.

The first application for post-conviction relief set forth the following grounds:

1. Denied a fair and impartial trial, which violated defendant’s Oonstitutional rights to due process.
2. Sentence and conviction are illegal and void due to trial judge’s failure at sentencing, to inform defendant of his right to appeal, as afforded under the provisions contained in the rules of criminal procedure:- “(Rule 3:7-10(c)”.

The transcript of the argument on the first petition for post-conviction relief shows that the court considered and disposed of adversely to the defendant three specific allegations. The allegations considered were (1) that the defendant was not notified of his right to appeal; (2) that the trial court improperly submitted to the jury the testimony of the witness Barbara Jeter; and (3) that the trial court erred in admitting into evidence the statement taken from the defendant allegedly in violation of his constitutional rights.

In disposing of the allegation that the defendant had not been advised of his right to appeal, there was presented to the court an affidavit signed by the defendant in which he acknowledged that he had been advised of his right to appeal both from the conviction and from the sentence by his attorney and that:

I have advised Mr. Museatello that I do not want him to appeal the verdict or the sentence. I am satisfied to leave things r.s they are now.

The trial court fully considered the second allegation and disposed of it on its merits, pointing out that the same argument had been made to the Supreme Court in State v. Ravenell, 43 N. J. 171, supra. In denying relief on the third allegation contained in the first petition for post-conviction relief, the trial court held that a full and complete hearing liad been conducted by the court at the trial as to the voluntariness of the defendant’s statement.

No appeal was taken from the denial of the first petition for post-conviction relief.

As to the pending petition for post-conviction relief, grounds 1 and 5 were disposed of by the denial of the first petition. R. 3 :22-5.

The second ground was disposed of by the hearing held at the trial on the voluntariness of the statement. Insofar as if may be based upon Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), which was decided June 22, 1964, after the defendant’s conviction, it fails to set forth a right to relief. Escobedo is not retroactive. Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Defendant is not entitled to any relief on this ground.

The third ground of the petition does not set forth anything cognizable in a petition for post-conviction relief. The most than can be said for it is that it makes a general allegation of errors in the charge which must be asserted on appeal. There is absolutely no showing that any such alleged errors denied the defendant “fundamental fairness in a constitutional sense.” R. 3 :22-4. State v. Smith, 43 N. J. 67, 74 (1964), cert. den. 379 U. S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706 (1965).

Ground No. 4 refers to the concurrent sentences of life imprisonment. No argument is made in support of this ground. The punishment for murder in the first degree is prescribed by the Legislature in N. J. S. A. 2A:113-4. A sentence of life imprisonment for murder in the first degree is not cruel and unusual punishment in violation of the Eighth Amendment. Powell v. Texas, 392 U. S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968); Hoard v. Dutton, 360 F. 2d 673 (5 Cir. 1966), cert. den. 385 U. S. 881, 87 8. Ct. 166, 17 L. Ed. 2d 108 (1966). Consecutive sentences for life imprisonment have been approved. State v. Carter, 54 N. J. 436, 451-452 (1969), cert. den. 397 U. S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970). See also State v. Vance, 112 N. J. Super. 479 (App. Div. 1970). Certainly, concurrent life imprisonment terms for two separate killings are not excessive.

This disposes of all of the grounds of the present petition for post-conviction relief except the sixth ground which is a general statement that the defendant was denied due process of law. This ground may be merely a conclusion based on the five other grounds. If it is intended to he an independent ground, it is entirely too vague to he cognizable and is not sufficient to require the holding of an evidentiary hearing. State v. Lenkowski, 24 N. J. Super. 444, 447 (App. Div. 1953). See also State v. Reynolds, 43 N. J. 597 (1965), and State v. Johnson, 43 N. J. 572, supra, in which cases it appears from the opinions that the allegations were particularized and supported by affidavits submitted on the appeal. Cf. Wade v. Yeager, 377 F. 2d 841, 846 (3 Cir. 1967), cert. den. 393 U. S. 893, 89 S. Ct. 218, 21 L. Ed. 2d 173 (1968).

Having examined all of the grounds set forth in the second petition for post-conviction relief, we find that none of them disclose that the denial of the relief would be contrary to the Constitution of the United States or of this State or would result in fundamental injustice.

The order denying the petition for post-conviction relief is affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WALLACE J. HEGEL AND MICHAEL AMICO, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 13, 1970
    Decided January 28, 1971.

      Before Judges Goldmann, Leonakd and Mountain.

      Mr. Michael E. Biccardelli argued the cause for appellants (Mr. Barry H. Evenchich, attorney and on the brief).

      Mr. George N. Pappas, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Mountain, J. A. D.

Defendants were jointly indicted and tried for so-called felony murder. They appeal from convictions following jury verdicts of guilty of first degree murder with recommendation of life imprisonment. The victim’s death allegedly resulted from an assault by defendant, Amico, committed while attempting to rob. Hegel was found guilty as an aiding and abetting participant.

A recital of the facts is necessary to an understanding of the legal issues involved.

On Veterans Day, November 11, 1968, sometime in the forenoon, the two defendants chanced to meet in a tavern in Paterson. Amico said he was going to drive to Newark on a personal errand and Hegel asked if he might accompany him in order to meet his girl friend, Alice LePree. Upon Amico agreeing, Hegel telephoned Alice, who lived in South Orange. He had apparently called her earlier but she had then been still asleep. This time he spoke to her and it was agreed that they would meet a littie later in Newark.

According to Ami go’s testimony — Hegel did not take the stand — they then drove to a tavern in South Orange and while there Hegel telephoned Alice for the third time. They agreed to meet in Newark between 1:30 and 2 :00 p.m. The call appears to have been made about 12 :30. The proprietor, as well as a police officer who knew Hegel and happened to be in the bar, both corroborated his presence in the tavern and remembered that he had phoned. This telephone call is of especial importance in view of the argument put forward by the State that Hegel lured Alice away from her home at a particular time so that she would be absent when defendants arrived with intent to rob.

Alice first testified that upon the occasion of this call, Hegel said he was in Paterson. She at least partially recanted on cross-examination and admitted that he might not have said this, and that she might have assumed he was still at the bar in Paterson due to the noise of clinking glasses in the background.

According to Amico, he and Hegel then left the South Orange tavern and drove to Newark so that he might carry out his errand at the office of the Veterans Administration. Arriving at the office and finding it closed because of the holiday, they then quickly returned to South Orange in an effort to head off Alice before she left for Newark. Upon coming into the neighborhood where Alice lived, they stopped and consulted. Alice lived with her grandmother, Josephine LePree, her grandfather and two aunts. She had been dating Hegel for about seven months and to her grandmother, at least, he was not an acceptable swain. She often referred to him as “that pest.” She apparently harbored similar feelings about any young man who was attentive to her granddaughter. Pointing this out to Amico, Hegel suggested that he, Amico, approach the house to see whether Alice might still be there, since the grandmother did not know Amico, while Hegel drove to the bus stop where Alice might be expected to take a bus for Newark. Agreeing to this proposal, Amico alighted and started walking toward the house.

At this point both defendants were seen by a witness, Margaret Spacek, who lived near Alice’s home. She saw the ear stop, saw Amico get out and cross the street toward her house and saw the car drive away. She was standing on the porch and at first thought Amico was someone she knew. Before realizing her error she said “hello” and then quickly perceived her mistake. She noted that Amico continued to walk in a normal, unhurried manner in the direction of Alice’s residence. He moved out of sight.

No one except Amico testified as to what immediately followed. He said that he proceeded to the LaPree home and stood about hoping Alice would see him and come out. They were well known to one another and Alice had been told that Hegel was in his company. As a matter of fact, Alice had already left. At this point Hegel returned, still driving Amico’s car. He indicated by a manual sign that he had failed to find Alice at the bus depot. Amico, according to his own testimony, in order to move things along, walked up the LePree driveway to the back of the house and knocked at the door. A person, who proved to be Josephine LePree, asked who was there. Anxious to learn whether Alice had yet left, and believing he might be turned away if he identified himself, Amico said he was “from the Public Service.” Mrs. LePree opened the door and upon his inquiring whether Alice was at home and recognizing that he was not the person he had said he was, called him a ‘Turn,” grasped a broom ot some similar object and appeared about to strike him. He beat a hasty retreat, walked back down the driveway, met Hegel and recounted the episode that had just occurred. They both then ran back to the parked ear and left. Returning to Newark they met Alice, who was annoyed at having been kept waiting about 30 minutes. All three were together the rest of the afternoon and early evening. So much for the testimony of Amico.

It so happened that as he was leaving the LePree home, walking back down the driveway, Amico was seen by Michelle Gelinas, age 13, who lived in the house next door. She testified that he was walking in a calm and unhurried fashion, occasionally looking behind him. She saw him reach the sidewalk and turn down the street before he moved out of her line of vision.

About two minutes after Amico had disappeared, Josephine LePree was heard at the Gelinas’ back door. Mrs. Claire Gelinas and her daughters, France and Michelle, were at home. Mrs. LePree entered the kitchen and proceeded into the living room. She was distraught, upset and frightened. There was a bloody mark on her check. She announced that she was dying, that a robber was in her house and that she needed help. Her appearance alarmed Mrs. Gelinas who asked her to sit down, directed her daughter to prepare a cup of tea and at once telephoned the police.

The conversation between the officer who answered the telephone at the police station and Mrs. Gelinas and Mrs. LePree, who alternately spoke at their end of the line, was recorded on tape by a machine at headquarters. The recording was played back to us on the oral argument of this case and a written transcription forms part of the record. While the conversation was in progress, Mrs. LePree fainted. She never regained consciousness and died very shortly thereafter. Two points stand out in this conversation: Mrs. LePree knew she was dying and she herself never mentioned any robbery or any robber. Mrs. Gelinas, however, did. She repeated that a robber, who had slapped Mrs. LePree and pushed her to the ground, was in the house. Eurthermore, at the trial, each of the three members of the Gelinas family testified that Mrs. LePree had said (obviously, not during the recording) she had been robbed or that a robber had entered her house.

Josephine LePree, at the time of her death, was 77 years old and grossly overweight. She had had two previous heart attacks —• myocardial occlusions. The autopsy examination disclosed her heart to have been enlarged and scarred. The coronary arteries were arteriosclerotic.

The State’s case is one of felony murder. The applicable statute provides that,

If any person, in committing or attempting to commit * * * robbery * * « kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act * * * then such person so killing is guilty of murder. [N. J. S. A. 2A :113-1]

To sustain the conviction there must have been a finding that Mrs. LePree’s death ensued from defendant’s attempt to commit robbery. The only evidence that there was an attempt to commit robbery is found in the statements of Mrs. LePree as recalled by Mrs. Gelinas and her two daughters.

These statements were admitted, over defense counsel’s objection, as dying declarations ■—• a well recognized exception to the hearsay rule. Evidence Rule 63 (5) provides that,

In a criminal proceeding, a statement made by a victim unavailable as a witness because of his death is admissible if it was made voluntarily and in good faith and while the declarant was conscious of his impending death.

Upon a preliminary examination out of the presence of the jury the trial judge found that Mrs. LePree was conscious of impending death. Such a finding was in every way justified. There was also no doubt that the statements were made voluntarily, nor is there any reason to impugn the good faith of the declarant. Thus the prerequisites to- admissibility as set forth in the rule appear to have been met.

But even though the circumstances surrounding the dying declaration may be such as to meet the requirements of the rule, for the statement to be received in evidence it must be otherwise evidentially admissible. Such, we think, was not the ease here.

The words of the victim, that she had been robbed or that a robber was in her house, allegedly repeated several times, amounted to an assertion of opinion only. They were a conclusion. Ordinarily such a statement is inadmissible.

In a number of cases the courts have had under consideration the question of the admissibility of statements characterizing the act of the accused as criminal, or as importing a degree of crime, such as declarations to the effect that the declarant had been “murdered,” “butchered,” “assassinated,” “robbed” or “waylaid.” Although the admissibility of declarations involving the use of such terms is often controlled by the surrounding circumstances, such declarations are generally and ordinarily held to be inadmissible as statements of opinion or as conclusions. [1 Wharton, Criminal Evidence (12th ed. 1957), § 311 at 725]
Opinions in dying declarations are inadmissible. It is indispensable that the dying declaration should consist solely of facts, and not of conclusions, mental impressions or opinions. [Underhill, Criminal Evidence (5th ed. 1956), § 292 at 735]

Thus, a statement that would be inadmissible as a conclusion, were the declarant living and present to testify, is not admissible merely because the declarant’s death was imminent. Had Mrs. LePree been alive and able to give evidence she would, of course, have been allowed to state the facts touching the alleged crime but she would not have been permitted to make a general conclusional statement that a particular crime, such as robbery, had been committed. Annotations: “Dying declarations involving an opinion or conclusion,” 25 A. L. R. 1370 (1923), 63 A. L. R. 567 (1929); “Admissibility in criminal trial of dying declarations involving an asserted opinion or conclusion,” 86 A. L. R. 2d 905 (1962). Although, as an examination of the cases collected in the foregoing annotations will reveal, the authorities are somewhat divided, the majority rule supports a finding of inadmissibility where the utterance narrates no fact but states merely a conclusion.

There is, however, a definitely discernible trend toward a relaxation of this rule of exclusion in favor of a policy of admissibility where circumstances attending the utterance lend support to the validity of the opinion or conclusion expressed by the decedent. This trend is clearly attributable to the influence of Professor Wigmore, who thought the opinion rule found no place in a consideration of the admissibility of dying declarations.

The Opinion rule has no application to dying declarations. The theory of that rule is that, wherever the witness can state specifically the detailed facts observed by him, the inferences to be drawn from them can equally well be drawn by the jury, so that the witness’ inferences become superfluous. Now, since the declarant is here deceased, it is no longer possible to obtain from him by questions any more detailed data than his statement may contain, and hence his inferences are not in this instance superfluous, but are indispensable.
Nevertheless, most Courts accept the Opinion rule as applicable. [5 Wigmore, Evidence (3rd ed. 1940), § 1447 at 247]

As examples of courts that have accepted Wigmore’s position, see Pendleton v. Commonwealth, 131 Va. 676, 109 S. E. 201 (Sup. Ct. App. 1921); Commonwealth v. Knable, 369 Pa. 171, 85 A. 2d 114 (Sup. Ct. 1952); Connor v. State, 225 Md. 543, 171 A. 2d 699 (Ct. App. 1961). In adopting this view, however, the courts which have done so have been careful to note that a dying declaration that states an opinion or ultimate conclusion is not under all circumstances automatically admissible. Thus the Pennsylvania Supreme Court in Commonwealth v. Knable, above, while agreeing that

* * * dying declarations which contain inferences and conclusions of the declarant from facts which he knows or observes but does not state may be admissible; and the opinion rule has no application to dying declarations.

nevertheless cautioned that in such instances

* * * all the attendant circumstances should he considered, including the weapon which wounded him, the nature and extent of his injuries, his physical condition, his conduct, and what was said to and by him. [Citations omitted] Whether the attendant facts and circumstances of the case warrant the admission of a statement as a dying declaration is in the first instance for the court, but, when admitted, the declarant’s state of mind and the credibility, interpretation and weight to be given his statement are for the jury under proper instructions. [85 A. 2d at 117]

We agree with this formulation of the rule.

At the trial below the court conducted a preliminary examination out of the presence of the jury to determine whether the dying declaration of Mrs. LePree should be received. This was entirely in accordance with the accepted practice that the admissibility of such a proffered statement shall first he determined by the judge. The court found, as required by Evidence Rule 63(5), that the statement had been made voluntarily, in good faith and in contemplation of imminent death. As already noted, we agree that these findings were correct and soundly based upon evidence in the record.

But nowhere was any thought or attention given to the circumstance that decedenPs words stated an opinion and not a fact, that they were eonclusional — and that the conclusion pertained directly to an ultimate issue upon which the whole question of innocence or guilt rested. Where such is the case, the preliminary hearing held by the court should include, in addition to testimony supporting or negating the requirements enumerated in the rule, evidence illuminating all relevant circumstances surrounding the utterance, and the trial judge should examine and weigh all such testimony to determine whether, in his sound judgment, the statement of decedent can be received without undue prejudice to the defendant. It must be borne in mind that a dying declaration is often terrible in its consequence and well nigh impossible to counter. It has been described as “devastating” in its impact. State v. Yough, 49 N. J. 587, 598 (1967). Where it takes the form of an opinion or a conclusion it should not be offered to the jury until a preliminary determination has been made by the judge that in light of the totality of all relevant circumstances it can fairly be received without undue prejudice.

A careful reading of the full record in this case satisfies us that had this issue been examined on preliminary hearing, it must, for reasons set forth below, have resulted in a determination to reject the statement.

It will be remembered that Claire Gelinas and each of her two daughters recalled hearing Mrs. LePree say that she had been robbed or that there was a robber in her house. As Mrs. Gelinas was being questioned as to what Mrs. LePree actually said, the following colloquy ensued,

Q Did she indicate to you at that time that she was being robbed?
A No, she don’t say she was being robbed. She said there was a robber in my home, un [one] man.
Q But she didn’t say she was being robbed?
A No.
Q She did say that there was a robber in her home?
A Tes.

Defense counsel upon this important point invited the court to compare Mrs. Gelinas’ testimony at the trial with her earlier statement given before a municipal magistrate. Upon the former occasion, when asked, “Did she [Mrs. LePree] say what the man was doing in her home?” she had replied “No, she said nothing at all.” And upon the question being repeated, “She didn’t say why the man was in the house at all?”, the witness’ response had been, “No, no, no.”

These remarks at least suggest that Mrs. LePree may have used the word, “robber,” merely as an opprobrious epithet. They do not substantiate a conclusion that a robbery was in progress or was being attempted.

Further, as was noted above, no word uttered by Mrs. LePree that was recorded as a part of the telephone conversation to police headquarters referred to a robber or to robbery.

It was generally conceded that there was no evidence of a robbery having been committed.

A commonly expressed justification for including dying declarations among the exceptions to the hearsay rule is that the realization of impeding death supports a strong likelihood of credibility. Here we have no doubt Mrs. LePree thought she was dying. (As previously noted, she was 77 years old and had suffered two previous severe heart attacks.) Indeed she was — understandably — so deeply preoccupied with her physical condition as to have been conscious of little or nothing else. One cannot examine her remarks in the setting and context in which they were uttered without sensing her deep concern for her mortal welfare —■ a concern so exclusive of all else that it engenders real doubt as to whether her mind came to bear upon any other subject. It was while in this state and condition that she used the words, “robber” and “robbery” — and against this background must their descriptive precision be weighed. How different is this, for instance, from the circumstances surrounding the statement of the decedent in an early leading case, Donnelly v. State, 26 N. J. L. 463 (Sup. Ct. 1857), aff’d 26 N. J. L. 601 (E. & A. 1857), where the declarant was carefully cautioned not to accuse anyone wrongfully, 26 N. J. L. at 501, thus bringing home to him the gravity of the charge. Certainly such was not here the case. It is hard to believe that Mrs. LePree, crying for help and rightly fearful of impending death, had any realization that her remarks would have the fateful impact upon the lives of the defendants that has in fact ensued.

Finally, we note how implausible are the inferences that must be accepted if full credence is to be given the dying declaration. We must assume that these defendants undertook in broad daylight to rob a house where there was no expectation of discovering anything worthwhile; where, for all they knew — as the evidence establishes — there might just as probably have been four persons on the premises as one. We must also bear in mind that Hegel had been dating Alice for about seven months and that a relationship of an affectionate nature existed between them. Indeed, falsehoods in the statement she first gave the police were clearly motivated by a desire to protect him, and there is evidence that he reciprocated this regard. Is it likely that he would have burglarized her house? We think not. Consider, too, the manner in which Amico left the house and proceeded in a calm and unhurried manner to depart down the driveway. And had he wished to rob could he not have overcome the aged and ailing woman, whose presence on the premises was not unexpected but in fact anticipated?

Perhaps no one of the arguments set forth above would in and of itself have been sufficient to require that the statement be excluded, but when considered together they convince us that its reception amounted to prejudicial error.

In view of our conclusion upon this point we deem it unnecessary to consider any of the other alleged grounds for reversal.

The conviction is reversed and the cause remanded for further proceedings not inconsistent with the foregoing opinion.


text:
    CLAIRE M. HALLBERG, PLAINTIFF-RESPONDENT, v. STEPHEN HALLBERG, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 19, 1971
    Decided January 28, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Messrs. Kronman Osofshy, attorneys for appellant {Mr. Robert M. Kronman, of counsel).

      Mr. Thomas L. Zimmerman, attorney for respondent.
   The opinion of the court was delivered by

Lane, J. A. D.

Defendant appeals from an order denying his motion to modify the provisions for alimony and maintenance contained in the judgment nisi and denying his application to have visitation with two infant children, seven and ten years old, for two weeks during the summer.

Plaintiff obtained a judgment nisi for divorce dated November 6, 1967 on the ground of desertion. The judgment nisi approved an agreement dated July 7, 1967 for support for the wife and the two children. At the time of the agreement and the judgment nisi, the plaintiff was unemployed. On April 28, 1970 defendant filed a notice of motion to modify the judgment nisi by reducing the alimony and support. The motion also sought visitation for a two-week period during the summer with the children. Affidavits submitted to the court by the parties disclosed that the defendant had remarried and was supporting his second wife who was not employed. Under the terms of the agreement, he was required to pay $514 a month for the support of his first wife and the two children. The plaintiff had been employed during the year 1969, receiving a net income from such employment of $2,177.03. She alleged that she was no longer employed. In 1967 defendant had gross income of $9,005.88. In 1969 he had gross income of $11,737.63. Ilis moving papers showed that his income had dropped substantially in 1970 up to the time of the motion. Both parties set forth their living expenses from which it appeared that neither had sufficient to live on.

When the motion came on for hearing, the Chancery Division recognized that there were diametrically opposed contentions of fact. Bather than holding a plenary hearing, the judge directed that depositions be taken and the matter determined on the affidavits and the depositions. This was error. The court should have set the matter down for a plenary hearing and taken oral testimony. Tancredi v. Tancredi, 101 N. J. Super. 259 (App. Div. 1968). Here the defendant had made a prima facie showing of a change of circumstance. The employment of the plaintiff and the remarriage of the defendant were factors that the court had to consider in determining whether in fact there was such a change of circumstances as to justify a modification of the judgment nisi. Martindell v. Martindell, 21 N. J. 341, 353 (1956); Bartok v. Bartok, 52 N. J. Super. 266 (App. Div. 1958); 11 N. J. Practice (Herr, Marriage, Divorce and Separation) (3d ed. 1963), § 721 at 11. The court properly gave leave to take depositions. Often applications to modify are amicably adjusted after depositions are taken.

Whenever there is presented to the court a motion to modify the terms of a judgment and the motion makes a prima facie showing that the moving party is entitled to relief and there are contested issues of fact, the motion should not be disposed of by affidavits, answers to interrogatories and depositions. There should be a plenary hearing. At the conclusion of the plenary hearing, the trial court must find the facts both subsidiary and ultimate and “state its conclusions of law thereon.” R. 1:7—4.

The trial court denied the application for summer visitation because at the time the motion came on for hearing, the defendant was in arrears. The trial court refused to make any modification of the order until the defendant paid the arrears.

In Sarner v. Sarner, 45 N. J. Super. 216 (App. Div. 1957), certif. den. 25 N. J. 103 (1957), this Court stated:

In the absence of exceptional extenuating circumstances, courts are not inclined to bear a litigant wbo resists or evades tbe enforcement of its orders until be bas satisfactorily settled bis default. [45 N. J. Super. at 221-222]

This statement must not be read out of context. It was dicta because in fact the defendant had purged himself of the contempt. In addition, the facts in Sarner were unusual. There the defendant had the ability to comply with the order of the court but refused to do so. In the ease before us, as in the majority of cases in which a former husband seeks a modification, there is a factual question as to his ability to comply with the judgment. Except in unusual cases, he should not be barred merely because he is in arrears.

In Traudt v. Traudt, 116 N. J. Eq. 75 (E. & A. 1934), the court stated:

Tbe court of chancery bas beld that it is an established rule of that court not to relieve a party of bis duties under tbe court’s order unless that order is first obeyed (Cooper v. Cooper, 103 N. J. Eq. 416) ; but tbe principle rests mainly upon the conception that a party may not at tbe same time and in tbe same matter be a suitor before and a contemner of the court. It is grounded in the displeasure of the court at the disobedience of its mandate and is in the interest and for the safety of the public with respect to the due administration of justice. It is not primarily for the particular opposing litigant in whose favor the order stands, and a departure does not of itself give him ground of appeal. It is not error, per se, that the court of chancery, to accomplish eauity, should grant relief to a party by modifying an existing order with which, to the last letter, he has not complied, [at 80]

See also Royce v. Royce, 124 N. J. Eq. 469 (E. & A. 1938).

It was error for the trial court to refuse to consider on its merits the defendant’s application for modification of the judgment nisi both as to alimony and support and as to visitation.

The right of a father to visitation is not “dependent upon or connected” with his duty to support. Fiore v. Fiore, 49 N. J. Super. 219, 227 (App. Div. 1958), certif. den. 28 N. J. 59 (1958); cf. Lawrence v. Lawrence, 79 N. J. Super. 25, 34 (App. Div. 1963). The agreement between the parties has no binding effect insofar as visitation is concerned. The question is always what is in the best interests of the children no matter what the parties may have agreed to. A request by the father for a two-week uninterrupted summer visitation with the two children is reasonable unless there be an affirmative showing by the mother that it would not be in the best interests of the children.

The order of the Chancery Division dated June 5, 1970, insofar as it denied the defendant’s application for a modification of the judgment nisi as to alimony and support and denied the defendant’s application for summer visitation, is reversed. The matter is remanded to the Chancery Division for the holding of a plenary hearing on the application for modification of the alimony and maintenance provisions, and a consideration on the merits of the request for summer visitation.

No costs.


author: Matthews, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ARTURO BONANO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 4, 1970
    Decided February 2, 1971.

      Before Judges Lewis, Matthews and Mintz.

      Mr. Edward P. Hannigan, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley Q. Van Ness, Public Defender, attorney).

      Mr. John P. Jehl, Assistant Prosecutor, argued the cause for respondent {Mr. A. Donald Bigley, Camden County Prosecutor, attorney).
   The opinion of the court was delivered by

Matthews, J. A. D.

Defendant appeals his conviction of second-degree murder for which he was sentenced to serve a term of 12 to 20 years in State Prison, Trenton.

Three grounds are raised on this appeal in support of defendant’s claim for reversal: (1) the trial court erred in charging the jury that voluntary manslaughter is an unintentional killing and an act done without any intent to kill; (2) the court also erred in charging that only rage or the heat of anger are the emotions appropriate to reduce the grade of homicide to manslaughter, and (3) the court erred in failing to charge the jury that defendant was under no duty to retreat from his assailant.

We see no merit to the first two points raised. In State v. Brown, 22 N. J. 405, 411 (1956), our Supreme Court defined manslaughter as “the unlawful killing of another without malice, either express or implied, which majr be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act.” Clearly, the definition of manslaughter accepted in this State includes only those homicidal acts which are committed without intention to kill. Defendant has cited to us State v. Barker, 68 N. J. L. 19 (Sup. Ct. 1902), as authority for the contrary view. In that case, Chief Justice Gummere, writing the opinion for the former Supreme Court, interpreted an earlier form of N. J. S. A. 2A:90-2, which made it a high misdemeanor to commit an assault with intent to kill, as including an attempt to commit manslaughter. We do not regard the holding in Barker as being apposite here, and we find it inappropriate to follow the late Chief Justice’s anachronistic dictum found in his reference to the so-called “unwritten law,” which is used in the opinion, as the basis for .changing the accepted definition of manslaughter in this jurisdiction.

Defendant also argues that the trial court unduly restricted the examples of emotions which could lessen the nature of the homicide committed here to manslaughter. Defendant suggests quite correctly that fear could also have produced the result. Our reading of the trial judge’s charge, however, does not satisfy us that the jury was limited to the considerations of anger or rage when considering whether this killing was a manslaughter. We do not find plain error.

Finally, it is argued that the trial judge erred in refusing to instruct the jury that defendant was under no duty to retreat from his assailant. In dealing with this argument, it is necessary to refer to the facts as they were adduced before the jury. In doing so wo accept the version most favorable to defendant.

At 7 :lo p.m. on the night of the shooting, defendant left his home in Camden to go to Philadelphia to play cards with some friends. Before leaving, he took his pistol and placed it in the belt of his trousers. Defendant lived with his common law wife at 726 State Street in Camden. At the time that he left for Philadelphia, his wife indicated to him that she was going to retire for the evening. Defendant went to Philadelphia and failed to find a card game, returning earlier than expected. On his return home, defendant discovered that his wife had been to a christening party in the neighborhood. Apparently angered by her actions, he struck her in the face when she returned home and went out and stood on his front porch. Defendant’s stepdaughter, an 13-year-old, seeing her mother struck by her stepfather, ran over to the christening party and informed her uncle, defendant’s brother-in-law, Carlos, what had transpired. Thereupon Carlos took a knife and headed for defendant’s home with several others accompanying him. As Carlos approached the steps, defendant saw that he had a knife. Defendant claims that Carlos stated that he had come to kill him. Carlos began to ascend the steps whereupon defendant shot him in the stomach. There was also testimony by others at the scene that Carlos did not have a knife, or at least did not have a knife drawn, and that nothing was said with respect to him killing defendant.

The basis for the claim that the trial judge should have instructed the jury that defendant had a right to stand his ground at the approach of Carlos, is that the scene of the shooting took place at the entrance of defendant’s home. Defendant would have us invoke the ancient concept of man’s habitation as his “castle,” in determining whether defendant had a right to stand his ground or retreat under the circumstances. See, generally, Perkins on Criminal Law (2 ed. 1969), c. 10 at 1022-1024.

In State v. Abbott, 36 N. J. 63 (1961), the Supreme Court dealt with the doctrine of retreat as it has been and should be applied in this jurisdiction. While the facts in Abbott did not involve the defense of one’s home, they did, however, provide the basis for the court to reaffirm the doctrine of this State with respect to the duty of retreat:

We are not persuaded to depart from the principle of retreat. We think it salutary if reasonably limited. Much of the criticism goes not to its inherent validity but rather to unwarranted applications of the rule. Bor example, it is correctly observed that one can hardly retreat from a rifle shot at close range. But if the weapon were a knife, a lead of a city block might well be enough. Again, the rule cannot be stated baldly, with indifference to the excitement of the occasion. As Mr. Justice Holmes cryptically put it, “Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U. S. 335, 343, 41 S. Ct. 501, 502, 65 L. Ed. 961, 963 (1921). Such considerations, however, do not demand that a man should have the absolute right to stand his ground and kill in any and all situations. Rather they call for a fair and guarded statement of appropriate principles.
1. The issue of retreat arises only if the defendant resorted to a deadly force. It is deadly force which is not justifiable when an opportunity to retreat is at hand. Model Penal Code § 3.04 (2) (b) (iii). As defined in § 3.12 (2) a deadly force means “force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm.” [at pages 70-71]

Under the facts of this case as we have set them forth above, it is quite clear that defendant, who unquestionably resorted to the use of deadly force, could easily have gone back into his own house and closed the door, thus keeping the victim from approaching him with the knife. This observation is made considering all of the testimony, but accepting only defendant’s version of the events as they transpired on his doorstep at the time of the shooting.

The doctrine of retreat is not to be regarded as an end in itself. It has been established because it serves to preserve human life. The law cannot condone the taking of the life of another merely because of some ritualistic concept which would seek to protect the integrity of the physical boundaries of a house. A human life, even that of an aggressor, is regarded more valuable than the fetish of the close. We conclude, accordingly, that, under the facts adduced here, the trial judge did not err in failing to instruct the jury that defendant was under no duty to retreat from his assailant.

The judgment of conviction is affirmed.


author: Goldmann, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES T. WENZEL, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 25, 1971
    Decided February 2, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Halo M. Tarantola argued the cause for appellant {Mr. Robert I. Kuchinslcy, on the brief).

      Mr. Stephen B. Rubin, Assistant Prosecutor, argued the cause for respondent {Mr. Oscar W. Rittenhouse, Hunterdon County Prosecutor, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Defendant was found guilty of careless driving (N. J. S. A. 39:4-97) in the municipal court and fined $15 and $5 costs. The County Court heard his appeal de novo on the municipal court transcript, found him guilty and imposed the same penalty. He appeals.

Trooper Vanya was the State’s only witness. He testified that on May 8, 1969 defendant, driving a tractor-trailer, entered a construction area on Route 78 and jackknifed. The tractor and trailer became disengaged; the tractor crossed into the opposite lane, striking another tractor-trailer broadside. There was an explosion and the driver of the struck tractor was fatally injured. The trooper testified that before defendant entered the construction area there were 12 signs warning of the potential hazards ahead, and that the roadway area where the accident took place was "very narrow,” limited to single-lane traffic each way. The road was slippery, but he found no skid or tire marks. The trooper did not see the accident but said that two persons who did had told him the tractor-trailer had jackknifed. He added that the area was dangerous when wet.

Defendant moved for judgment of acquittal. The municipal judge denied the motion and found defendant guilty, noting that an “otherwise unexplained jackknifing” in a construction area with warning signs and reduced speed limit “is an indication of failure of the defendant to use due caution and circumspection.”

The County Court judge, after making findings of fact, concluded that the State had proved violation of the statute beyond a reasonable doubt. In doing so he relied on the doctrine of res ipsa loquitur, citing Mockler v. Russman, 102 N. J. Super. 582 (App. Div. 1968), and Bevilacqua v. Sutter, 26 N. J. Super. 394 (App. Div. 1953) — civil negligence actions — and stating:

Having the benefit of only the trooper’s testimony, the court holds that the circumstances herein, particularly the unexplained unusual occurrence of the jackknifing of the tractor-trailer, and crossing of the highway, permit this court to apply the doctrine of res ipsa loquitur as set forth in Bevilacqua. See also 79 A. L. R. 2d 6.

Prosecution for a motor vehicle violation is a quasi-criminal proceeding and the State has the burden of establishing all elements of the offense beyond a reasonable doubt. State v. Cestone, 38 N. J. Super. 139, 147-148 (App. Div. 1955); State v. Ring, 85 N. J. Super. 341, 343 (App. Div. 1964), certif. den. 44 A. J. 407 (1965). Taking the evidence in a light most favorable to the State — see State v. Reyes, 50 A. J. 454, 458-459 (1967) — it appears that, on a wet roadway in a construction area marked by a dozen signs warning of danger, defendant’s vehicle (according to the trooper’s hearsay testimony) jackknifed, crossed into the opposite lane and struck another vehicle. There is no evidence that defendant was speeding or, indeed, that he drove “carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property.” N. J. S. A. 39:4-97. State v. Tuccillo, 76 N. J. Super. 584 (App. Div. 1963), on which the State relies, is critically distinguishable; that case involved an appeal from the Director of Motor Vehicles’ revocation of defendant’s driver’s license, and was not a qwasi-criminal proceeding. Cf. Cestone, above.

Res ipsa is properly invoked in negligence actions where the proofs disclose that the offending instrumentality was in defendant’s sole control, that the occurrence bespeaks negligence, and there is no indication of contributory negligence. In such circumstances there arises a permissible presumption of negligence from plaintiff’s proof, and defendant is required to come forward with an explanation that will refute the presumption and show that the accident did not occur by reason of his lack of care. The foundation of the rule is the policy of placing the onus of producing evidence on the party "possessed of superior knowledge or opportunity for explanation of the causative circumstances.” Kahalili v. Roseclif Realty, Inc., 36 N. J. 595, 605-606 (1958).

Employment of the res ipsa doctrine obviously places a burden squarely on a defendant to explain why he was not negligent. The doctrine has no place in criminal or quasi-criminal proceedings, where the burden is totally on the State to prove beyond a reasonable doubt that defendant violated a penal (or grosi-penal) statute.

Eliminating any benefit the State may have had from the improper invocation of the res ipsa doctrine, we find that the evidence adduced by the State did not support the conviction beyond a reasonable doubt.

Reversed.