State v. Pickles

Decision Date21 March 1966
Docket NumberNo. A--54,A--54
Citation46 N.J. 542,218 A.2d 609
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Calvin PICKLES and Irene Pickles, Defendants-Appellants.
CourtNew Jersey Supreme Court

Robert C. Gruhin, Belleville, for appellants.

John F. Russo, Asst. Prosecutor of Ocean County, for respondent (William H. Huber, Prosecutor of Ocean County, attorney).

The opinion of the court was delivered by

FRANCIS, J.

The Grand Jury of Ocean County returned an indictment in two counts against defendants Irene Pickles and Calvin Pickles, her husband. The first count against both defendants charged that 'on divers dates between September 1, 1962 and October 9, 1962' they 'did wilfully, maliciously and feloniously mistreat their son, Michael Pickles, a child of four years, and treat him in a cruel, violent and unlawful fashion,' contrary to the provisions of N.J.S.A. 9:6--3. The second count charged Irene Pickles, alone, with manslaughter in that 'on or about the 4th day of October 1962 (she) did feloniously kill and slay Michael Pickles,' contrary to N.J.S. 2A:113--5, N.J.S.A. Following trial by jury on both counts of the indictment, defendant Irene Pickles was convicted of manslaughter; both defendants Irene Pickles and Calvin Pickles were convicted on the neglect count. Irene Pickles was sentenced to three to five years in the Clinton Reformatory on the manslaughter conviction, and on the neglect conviction to an indefinite term in the same reformatory, the two terms to run concurrently. Calvin Pickles was sentenced to one to two years in the New Jersey State Prison on the neglect count conviction. While their ensuing appeal from the judgments was pending in the Appellate Division we certified it for determination in this Court.

The trial, which began on January 16, 1964, extended over a period of more than five weeks and consumed 25 court days. The record presented to us contains almost 2400 typewritten pages. The case would have been disposed of in half the trial time, and with a record perhaps half its present size, but for the exasperatingly prolix and repetitious examination of witnesses and arguments of defense counsel, the intemperate and undignified comments, interjections and statements of the assistant prosecutor, and the inexhaustible patience of a kindly judge. Moreover, it may be noted that on this appeal appellants' brief plainly violates our rules. It contains 105 pages, the limit being 50 pages. No leave was sought to exceed that limit. R.R. 1:7--7. In addition the brief contains 41 questions to be presented, covering more than six of its pages. See R.R. 1:7--1(c). On the other hand, the State's brief, although only 42 pages in length, does not make a single page reference to the typewritten transcript or appendix in its counter statement of facts. Further, although 17 points were argued, many of which contain allusions to testimony of witnesses, such page references appear only on three pages in the brief. This too violates R.R. 1:7--4(a)(4); R.R. 1:7--1(d). Reference to these matters is particularly important because in our view, for reasons to be stated, the interests of justice require a reversal of the defendants' convictions and a remand for a retrial--which we fully expect to be a more decorous one, reflecting when necessary the presence of a firm judicial hand.

I

The Charges and the State's Bill of Particulars.

The State's charge of manslaughter against Irene Pickles was based primarily on two theories: (1) On or about October 4, 1962 she placed her four-year-old son Michael in hot water for the purpose of punishing him without intending to cause his death, but that her act in placing him in the hot water was reckless and wanton and with utter disregard of circumstances likely to produce his death; (2) after placing the child in the hot water, she knew that he had suffered severe burns therefrom over about a third of his body, and knowing that such burns presented a high degree of probability of serious harm and being under a duty as a parent to provide care for the child, in reckless indifference to the consequences she failed to obtain timely medical attention for him, as the result of which he died on October 12, 1962.

The neglect count of the indictment against Irene Pickles and Calvin Pickles was based primarily on the State's position that after the child was burned seriously on or about October 4, 1962, they were criminally neglectful of their duty as parents to obtain proper and competent medical treatment for him. However, the charge was designed to encompass alleged acts of neglect by them separate and distinct from, but in addition to, the allegation of neglect based on the failure to obtain medical treatment for the child. The indictment, as noted above, charged that on divers dates between September 1, 1962 (a month and four days prior to the alleged bath) and October 9, 1962, defendant-parents treated their son Michael in a cruel, violent and unlawful fashion, contrary to N.J.S.A. 9:6--3. The statute makes it a misdemeanor for any parent having the care, custody or control of any child, to abuse, abandon, be cruel to or neglectful of such child.

The defense requested particulars as to the alleged acts of neglect and the dates thereof. The assistant prosecutor furnished particulars in letter form, which he agreed in open court to be bound by just as if they were submitted in the fashion of a formal bill of particulars. The specification of the acts of neglect (except for Mrs. Pickles' alleged act in causing the burns and for the failure of both defendants to procure medical attention) was:

'The defendant Calvin Pickles, on at least several occasions, knowingly left his son, Michael, at his home, only in the company of Michael's infant brothers, Thomas and Robert. The children including Michael often begged neighbors for food, and they were often refused use of the bathroom in the house; consequently they wet their pants, all to the knowledge of Calvin Pickles.'

Precisely the same specification was made against Irene Pickles.

Defendants' request for the dates of alleged commission of these acts of neglect obviously called for dates within the period set forth in the indictment, i.e. September 1, 1962 to October 9, 1962, the date on which the parents first sought treatment by a physician for their son. For some reason the State answered:

'These acts were committed by the above named defendants at diverse dates between January 1961 and mid October 1962, at or in the vicinity of the home of the defendants, 34 Adelphia Road, South Toms River, New Jersey.' (Emphasis added)

We have emphasized the January 1961 date because of some serious difficulty which arose in connection with the State's introduction of rebuttal testimony. No explanation was furnished as to why events prior to September 1, 1962 were referred to in the bill of particulars. The State recognized clearly that proof of the crime charged would be limited to the period between September 1, 1962 and October 9, 1962. At the trial the assistant prosecutor during an argument concerning the dates recited in the bill of particulars said: 'This bill of particulars in no way can enlarge that indictment.'

At the opening of the trial defense counsel moved for a severance of the neglect counts from the manslaughter count and requested that the matter proceed on one or the other of the charges, but not on both at that time. He asserted that the evidence introduced on the neglect charge might be very prejudicial, particularly on the manslaughter charge against Mrs. Pickles. The argument is not very clear but the force of it seemed to be that the evidence supporting the statutory offense of neglect, if accepted by the jury, might well lead them to conclude, without adequate consideration of the more serious nature of the charge of manslaughter, that guilt of manslaughter ought to follow.

The State justifiably argued that the motion was tardy. The trial court, however, heard the parties on the merits. The assistant prosecutor urged that the court could 'adequately protect' against defendants' fears in its charge. He suggested that the court would charge specifically what the jury must find to convict of manslaughter, and what must be found to convict of neglect of the child. And he argued that although a severance was discretionary, it should not be ordered in this case. The motion was denied, the trial judge saying he recognized it as his basic obligation to define the two crimes for the jury in his charge, and that under the circumstances the situation did not call for a severance. The refusal to grant the severance is one of the grounds of appeal. It may be noted here, as of some pertinence, that during the defense attorney's opening to the jury a controversy arose about his criticism of the general nature of the neglect charge in the indictment. In the course of the discussion the court pointed out that the State had furnished a bill of particulars in letter form and 'conceded that it will restrict itself to the facts set up' therein.

II

Problems that arose because of the joint trial of the

neglect and manslaughter charges against both defendants.

On the evening of October 9, 1962, Irene Pickles and Calvin Pickles brought Michael, their four-year-old son, to the office of Dr. Albert Pietroangelo in Toms River. The child was comatose and critically ill and the doctor arranged for his immediate admission to the Community Hospital. A pediatrician was called whose examination disclosed third degree burns of about 35% Of the boy's body. The burns were on the buttocks, the genital area, both thighs, in the area of the navel, the entire right hand and part of the wrist, and a small area on the back of the left hand. An unusual and undoubtedly significant aspect of the boy's condition was that the burns extended from the buttocks about halfway down both thighs; from there to a point...

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