State v. Smith, A--140

• Decision Date: 25 June 1958
• Docket Number: No. A--140,A--140
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Edgar SMITH, also known as Edgar H. Smith, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 433

27 N.J. 433

142 A.2d 890

STATE of New Jersey, Plaintiff-Respondent, v. Edgar SMITH, also known as Edgar H. Smith, Defendant-Appellant.

No. A--140.

Supreme Court of New Jersey.

Argued June 2, 1958.

Decided June 25, 1958

John E. Selser, Hackensack, and Herbert L. Smith, Leonia, argued the cause for appellant.

Thomas S. O'Brien, River Edge, argued the cause for the State (Guy W. Calissi, Hackensack, attorney; William C. Brudnick, River Edge, on the brief).

The opinion of the court was delivered by

WACHENFELD, J.

The defendant, Edgar Smith, having been convicted of first-degree murder without a recommendation by the jury, appeals the judgment of death rendered against him, contending he was denied a fair trial, that the verdict was against the weight of the evidence, and that prejudicial error was committed requiring a reversal of the conviction returned.

The points contended for by the defendant will be disposed of in the order in which they are presented in his brief.

The factual developments, although disputed in many respects, will be set forth fully since they have a direct relationship to some of the issues raised.

The victim, Victoria Zielinski, a 15-year-old school girl, resided in Ramsey, Bergen County, New Jersey. At about 7:30 P.M. on March 4, 1957 she left her home, intending to walk to the house of her friend, Barbara Nixon, located on the same street, Wyckoff Avenue, about eight-tenths of a mile away. She was accompanied by her 13-year-old sister, Myrna. Myrna left her sister about two houses away from her destination and returned home alone. The two girls had arranged that at 8:30 P.M. Victoria would leave the Nixon house and Myrna would leave her own home and they would meet half-way on Wyckoff Avenue and walk home together.

Myrna started toward the Nixon home at 8:40 but did not meet her sister as planned. She went to the Nixon home, arriving there at about 8:50, and ascertained that Victoria had left there at about 8:30. Barbara Nixon had accompanied Victoria outside and had seen her walking toward her home. Barbara had lent her a gray scarf, and she testified that when Victoria left for home no cars were seen passing on Wyckoff Avenue in either direction.

While Myrna was returning home at about 9:05 or 9:10 P.M. she saw a boy, designated as D.H. for the purposes of this opinion, drive past going in the direction of Ramsey at 50 or 60 miles an hour. He was alone in the car. Myrna testified that D.H. had known Victoria but had never dated her. At the trial D.H. admitted he had taken Victoria out approximately ten times.

When Myrna arrived home at about 9:10 P.M. she informed her mother, Mrs. Mary Zielinski, that Victoria had not met her as planned. Mrs. Zielinski was not unduly disturbed and took no immediate action. When Victoria had not appeared by 12:30 A.M., however, Mrs. Zielinski awakened her husband, Anthony, who had retired at 8:00 P.M. and told him the girl was missing. Mr. Zielinski got up, dressed, and with his oldest daughter, Mary, went out to look for Victoria.

While driving down Wyckoff Avenue, Mr. Zielinski and Mary encountered a patrol car and talked to the policemen who were in it. They then went on to a milk bar in Ramsey but were unsuccessful in finding Victoria, returning home about 1:00 A.M. Shortly thereafter Mr. Zielinski and his wife went out to continue the search, driving past the Nixons' and going to another milk bar. After about an hour the elder Zielinskis repaired to their home, and there continued their vigil until day-break.

As soon as it was light Mr. and Mrs. Zielinski resumed their search for their daughter. They visited the Nixons, who reported they had not seen Victoria since she left their home on the previous evening. They then went downtoan and gave Victoria's picture to a Ramsey police officer. Afterwards, the Zielinskis cruised around the streets in the vicinity of Wyckoff Avenue.

At about 9:00 A.M. Mr. Zielinski noticed a black loafer lying in the street near the intersection of Fardale Avenue and Chapel Road. As he stopped his car he also noted a kerchief, or babushka, approximately 20 feet farther up the road. It was stained with blood. He immediately dispatched his wife for the police, and then clambered over a low wall on the right-hand side of the road and began to search through the underbrush beyond. Finding nothing there, he went to the entrance of a sand pit situated just beyond the intersection of Fardale and Chapel, where he discovered a pair of red gloves. He returned to his automobile.

By this time Captain Wickham of the Mahwah Police Department had arrived on the scene, and together he and Mr. Zielinski searched both sides of the dirt road leading into the sand pit. There were tire tracks on the road. When they reached the top of a mound of dirt beyond the end of the dirt road Mr. Zielinski discovered a silver locket belonging to Victoria, her other loafer, various footprints, stones covered with blood, and an area of ground which had been 'scuffed.' He then saw 'brains scattered for seven or eight feet along the bank.' He looked over the edge of the mound and saw her body 'in a jackknifed position.'

Victoria was lying face down with her sweater pulled up around her neck and her brassiere down around her midriff. One of its straps was broken. She was still wearing dungarees. One of her socks was completely off while the other was hanging on her foot. Her windbreaker was lying beside her. There was a hole in the back of her head and much of her hair was gone. A hank of hair matted with blood was subsequently found on Fardale Avenue near the loafer first discovered by Mr. Zielinski. At the trial, Mrs. Zielinski, Myrna Zielinski and Barbara Nixon identified the clothing and accessories found on or near Victoria's body as those she had worn before she disappeared.

The autopsical examination revealed the cause of death as 'the total crushing of the skull with a decerebration, traumatic.' Victoria's brain and left eye were completely destroyed. Her teeth were hanging loosely in her mouth and her nose and jaw had sustained multiple fractures. Both her hands were covered with blood, and her fingernails were ripped. There was no evidence of a carnal assault. There were no marks on her body from the neck down, save for four or five small bruises on her right breast, apparently teethmarks.

Because the weather had been below freezing the county medical examiner was unable to fix precisely the time of death, stating 'the time of death in the winter with rigor mortis is a very moot problem' and '(t)he prevailing weather has a great deal to do with the setting in of rigor mortis or the dissolution, and I estimate that she was dead about 12 hours, give and take an hour.' Since the autopsy had taken place at about 1:00 P.M. on March 5, this estimate placed the time of death at around 12:30 or 1:00 A.M. on March 5. On cross-examination the medical examiner emphasized, however, that the exact time of death could not be fixed and further clarified his findings by stating:

'Q. So it was (the time of death), in your judgment, not * * * earlier than 11 o'clock * * * or perhaps not later than one? A. It could have been earlier than 11 o'clock because the prevailing weather was so cold and the body might have stiffened up, according to standard data.

'With rigor mortis setting in in the normal way and the normal atmosphere and the normal temperature, the time of death would be established at 12 hours, either an hour later or an hour earlier, but with the prevailing weather being as cold as it was, it was very hard to determine when it was exactly.'

The defendant, Smith, was 23 years of age with a wife and family. Prior to the date of the murder he had been employed at various jobs for short periods of time. His last employment was with a seat cover and automobile muffler shop which had hired him to help install hydraulic lifts and other equipment in its garage. Smith was discharged from this job on March 4, 1957, after working for approximately a week.

Defendant's possible connection with the murder was brought to the attention of the police by Joseph Gilroy, a friend of Smith, who testified as to what caused his suspicions.

On March 4, 1957 Smith telephoned Gilroy from the Paramus Bowling Alleys on Route 17 and requested him to drive over. Gilroy arrived at the alleys at approximately 4:30 P.M. and bowled four or five games with Smith and another friend, Charles Rockefeller. All three left the alleys at about 6:30 P.M. in Gilroy's automobile, a 1950 Mercury convertible While journeying home Smith asked Gilroy if he could borrow the latter's car in order to procure some kerosene for Ridgewood in D. H.'s car. with his wife and baby. Gilroy consented, and Smith took the automobile after dropping off Gilroy and Rockefeller at their respective homes.

Around 9:15 P.M. Smith telephoned Gilroy at his home. He said he was sick and had been unable to light the heater and asked Gilroy to drive him and his family to his mother-in-law's residence in Ridgewood. Gilroy agreed, and Smith came by for him in the Mercury at about 9:45 P.M. The two men then drove to the trailer to get Smith's wife and child.

On the way to the trailer Smith volunteered the information that he had vomited on the trousers he had been wearing earlier and had had to dispose of them, not saying where. Gilroy stated that in his opinion Smith did not look ill at the time.

After picking up Smith's family Gilroy drove them to Ridgewood and then returned home. At about 12:00 noon on the succeeding day, March 5, Smith again telephoned Gilroy, this time asking him to drive the Smiths from Ridgewood back to the trailer. Gilroy acquiesced and thereupon drove to a gas station, where he encountered D.H. The two drove to Ridgewood in H. H.'s car.

During the journey D.H. and Gilroy talked about the murder. D.H., who, from a conversation at the gas station, knew that...