*1 PLAINTIFF-RESPONDENT, JERSEY, STATE OF NEW CHRISTENER, JR., BENJAMIN A. DEFENDANT-APPELLANT. September July 14, Argued 9, 1975Decided 1976. *3 A. Getter the cause appellant.
Mr. James argued General, ar- Bosengarlen, Attorney Mr. Solomon Deputy Hyland, William F. (Mr. for respondent cause gued attorney; Bosengar- Mr. Jersey, General New Attorney ten, brief). of counsel and on the
The of the Court was delivered opinion A. Chris- Passman, Benjamin J. Defendant-appellant tener, shooting Jr. for the manslaughter was convicted an at defend- death of John Prench altercation during one Defend- ant’s trailer home in Pranklin on October 1972. four ant was sentenced to Prison for term of the State years. to six Division affirmed in an Appellate unreported opinion 67 N. J. 81 certification, this Court granted relief on multifarious we
Although seeks appellant grounds, find material of an in- only the question propriety case. struction on first murder under facts of this issue, reviewed this we there was Having conclude error reversal. requiring
I actually The October incident was the culmi- shooting of a which occurred during nation skein events larger *4 one-year Benjamin Ohristener was preceding period. he married, a tavern in Newton. Although proprietor had from and divorce proceedings was his wife separated Because he lived alone and devoted long been instituted. business, house hours to his defendant resided in small tavern. adjoining the Prench, Mrs. Britt wife of dece-
During period, this dent, with visited defendant’s tavern friends from frequently visits, work. Through these defendant became aware that Prench Mrs. was marital with serious experiencing problems instance, her husband. Por defendant noticed Mrs. her Prench often received calls from husband which telephone learned “white, left her He also pale, upset.” nervous and and, Prench had been threatened her husband Mrs. result, as a feared for her own and that of her safety four-year- old On one Mrs. Prench came to the occasion, daughter. had re- a black from a which she eye beating tavern tavern, Prench ceived from her husband. While at the Mrs. her husband’s brutal- related other to defendant instances dis- occasion, attempting Por after ity. example, on one beaten had been cuss their marital Mrs. Prench problems, had she beatings choked. Mrs. Prench testified to other and which she her during received well as an life attempt from a cliff. thrown narrowly escaped being marriage most emblematic of this troubled Perhaps involving an February incident which occurred on her leaving Mr. and Upon Mrs. Prench the defendant. and Mrs. day, working end of place at the employment a ride Prench was After accepting unable to locate her car. she where from a tavern friend, she went defendant’s Prench Earlier, John found both the car and her husband. had tavern, come introduced defendant as himself to caller, the theretofore unknown and indicated telephone infidelity. defendant his his wife’s suspicions concerning Prench and asked her point Mrs. at entered the tavern had, if had taken ear. he he her When he said that husband she left the and toward the lot. building proceeded parking she ear, husband, Before reached the her who had followed her, her to the and beat her. De- pushed ground began to fendant observed called the assault then who police had physically restrain escort Mr. Prench from wife, lot. In addition to Prench directed threatening of threats had variety epithets joined who Prench’s arrest. Mrs. Prench later bystanders watching *5 incarcerated who was filed her husband against complaint five in Court. Municipal for after his conviction days generally local were police Because her entreaties to the contacted defendant, unsuccessful, February, sometime Mrs. for and later the State Police on her behalf arranged A bond nearby at a motel. French and her to daughter stay and between defendant affection developed subsequently di- time instituted by Mrs. French had French. Mrs. with had husband agreed vorce her proceedings against and were divorces defendant married when their respective be final. In defendant purchased anticipation marriage, French Franklin Mrs. a mobile in the and home Borough and her residence there. established daughter months, Mr. French made frequent the ensuing
During mobile tavern telephone calls both to- defendant’s home, Mrs. French defendant, which he threatened during French and her in July On one occasion daughter. her at directly confronted Mrs. French and daughter altercation, local to avoid an office. unemployment Hoping Mrs. her ladies’ lounge French and waited daughter interview, until it was for her interview. time During however, when French scream daughter’s Mrs. heard John Pull- French her from attempted building. drag father, from ing her Mrs. French summoned girl away police to escort her to her car. (cid:127) incidents, As a of these to fear result learned John French his threats which were made largely because of ability credible French’s his great strength apparent carry threats. defendant and French were of out the While size, a much man. De- comparable the decedent was stronger fendant’s fear French unavail- was also heightened Mrs. for police efforts to secure himself protection ing French. he had purchased shotgun Although protection in- Mrs. French’s insistence after the office employment cident, defendant continued seek actively police protection. [Nonetheless, police relatively the local proved unsympathetic to his His complaints. inability impress police *6 fear of and his own the of John French’s threats seriousness in helplessness man a sense frustration and produced the an unsuc- manifested after defendant. frustration was This chief on Sep- cessful local police for plea protection at “I remarked, have down gun tember 15 when defendant state- I will the bitch.” This tavern and shoot son defendant’s in contrast to ment, stands stark though petulant, Generally, time during period. behavior this general pattern to avoid confronta- potential made efforts great defendant to were altered French, and normal activities tions his in defendant often slept accommodate fear. For example, also had his telephone He safety. tavern personal and occasion, he called the police number On one changed. from bar had French companions and several escorted threatened to hoods from after French earlier had “bring you.” Hew York and place get pair break the up [to] Mrs. French Friday, On informed September her visit the mobile defendant that she husband to expected rights with visitation day conjunction home the next had divorce that John hearing. been at granted Afraid her, asked to be kill Mrs. French defendant French might with him from the and tavern. bring shotgun to present consented. Defendant arrived the mobile home next defendant morning early back By
and in one of the rooms. placed shotgun come, defendant, ac- French had not afternoon, when still do and her decided to daughter, Mrs. French companied and do work at the errands, have then some supper some p.m. returned After they home. At tavern. approximately had to defendant gone sleep, French and her daughter Mrs. and storm door the inside wooden both the outside locked He then watched tele- chain lock. door and secured in the room. asleep awhile and fell living vision for early in the the con- morning awakened rudely He was to ascertain from the doorbell. Unable ringing stant bell, he asked the visitor window who was ringing nearby ad- John French demanded response, identify to himself mittance the trailer and threatened to kill Christener. When doors, defendant French open began pounding refused on the door storm and at both defendant and Mrs. swearing French. Although leave, defendant French to urged these further him. pleas only Defendant aroused Mrs. enraged French in the she able be better hope might mollify However, her husband. her estranged also proved efforts unsuccessful, and French the door. bang continued storm open, When French door began pry police, reported breaking entering telephoned At assistance be immediately. point, asked sent the storm frame door out its pulling French succeeded on the inside wooden door. Defendant pounding began *7 had been and summoned would police French the told however, This, did not deter his efforts momentarily. arrive the and Suddenly, gave way to inside the trailer. door get lock. Mrs. French screamed for by only was held the chain ran the rear of the to “do and he to something” he weapon, pro- mobile home the the shotgun. Retrieving load it room. Just living ceeded to as he ran towards the returned, chain on as he the the front wooden door broke and French the John entered room. Because of the con- fined defendant was unable quarters, to raise the shotgun and, instead, held it his shoulder side. by his Although French did not appear armed, to be according to defendant he looked like a “wild man.” French moved towards Mrs. French and her attempted grab she though successfully eluded Defendant grasp. ordered the intruder to leave and that he called repeated had the police. French lunged Mrs. towards French and defendant the fired shotgun. he had intended Although only to hit French the arm, the unusual manner in which he was forced fire the it at weapon (while holding his side) and his inexperience from such a shooting position reduced drastically defend- to aim ability ant’s the shotgun. of this and also Because the because of effect of scattering the single shotgun shell, Ereneh knocked the inflicted on were wounds multiple the floor. decedent the Mrs. Ereneh shooting, telephoned after
Immediately am- an and to incident report request police later be A medical examiner bulance ascertained sent. had blast sustained from the shotgun wounds
multiple pellet ultimate the massive produced hemorrhaging found that death. The examiner also Erench’s cause that level at which far exceeded body content alcohol al- under the influence of considered to be an individual cohol. County charged
Defendant was indicted in Sussex J. J. 2A murder in violation of N. S. A. :113-1 and N. trial, After a court instructed 14-day S. A. 2A:113-2. to the offenses of first and second as substantive jury murder and to retreat and duty degree manslaughter, affirmative and the defense of defenses of self-defense found defendant guilty manslaughter others. Division thereafter affirmed. We Appellate granted and the to consider substantive posed certification questions N. J. this case.
II court’s in Eirst, propriety we consider A. murder, N. S. to first structions discussion :113-2. We limit our N. J. A. 2A 2A :113—1 S. *8 by was supported whether this instruction considering fact that neither party We are cognizant evidence. Nonetheless, be instruction. an to this objection has raised an in effect of erroneous the potentially prejudicial of cause struction, to our sponte pursuant sua we raise question brought the attention of not “notice error plain power v. Ma R. 2:10-2. See State court.” or appellate the trial Hock, con, 538 526, v. 54 N. J. J. 325 State (1971); 57 N. Ed. 2254, 90 Ct. 26 L. 930, 399 U. S. S. cert. den. (1969), 797 (1970). 2d
64 issue in The parts.
We consider the two first con- part of sufficiency evidence to support cerns instruc- tion of Because we first murder. find the evidence degree in be this second of regard inadequate, part our dis- cussion the prejudice considers which defendant suffered a result of charge. this
A.
of
The crime murder in New
Jersey is one
J. S. A.
delineated
N.
2A:113-1 and N. J.
A. 2A:
by
S.
in
113-2. As embodied
those
consists
provisions,
crime
unlawful,
unjustified
and inexcusable
one
killing
Warren,
person
another
malice
1
aforethought.
Homicide,
Wharton,
at 162
54
1
Criminal Law
(1938);
§
Procedure,
187 at 432
(1957).
order to warrant
§
an instruction as to
murder and
degree
sustain a
first
thereon,
conviction
the State
also
must
show that
killing
“willful,
deliberate and premeditated.”1 State v. Gard
ner, 51 N. J.
459
444,
v.
(1968); State
46 N. J.
Billingsley,
Paolo,
219
State
Di
N.
34
J.
(1966);
279, 295 (1961);
880,
cert. den. 368
S.
130,
U.
82
Ct.
S.
7 L. Ed.
80
2d
willfulness,
elements
premeditation and de
liberation are not only essential
crime,
establishing
but also serve to distinguish this offense from
related
offenses of
degree
second
murder and
Malice
manslaughter.
also
murder
distinguishes
from
manslaughter,
the prose
cution is
the burden
assigned
of proving malice and disprov-
1 Upon
general
engrafted
definition of the
thei
has
State
crime
types
killings
response
policy.
other
ostensible
to matters of
result,
may
charged
killings
As a
first
murder
be
com
perpetration
(arson,
mitted in
certain common law felonies
burglary, kidnapping,
etc.),
Smith,
(1960),
State v.
32 N. J. 501
936,
(1961) ;
cert. den. 364 U. S.
81 S. Ct.
65 facts which would ing reduce the offense to manslaughter. Gardner, v. 51 supra, Robinson, State N. J. 459; State v. N. 475, 139 J. 484 Super. Div. Proof (App. 1976). — n these statutory elements the burden is which placed — on the State must be sufficient reasonable negate every Mills, doubt as to their v. nonexistence. State N. J. 51 277 Wilbur, See also (1968). v. Mullaney 684, 421 U. 95 S. 1881, Robinson, S. Ct. 44 L. Ed. 508 2d State v. (1975); also, supra. See Jones, Past, Present Fu “Presumptions and ture,” 4 Q. Crim. Justice 14 (1976).
In instructing the instant case, the trial court defined these using elements language closely Paolo, parallels used this Court in v. Di supra. State case, In that Chief Justice Weintraub stated: judicial construction, premedita- first As settled element tion, conception design plan which consists to kill. statutory Next comes deliberation. word “deliberate” does not frequently or “intentional” here mean “willful” as the word is used daily parlance. imports requires Rather it “deliberation” design kill, weighing pros a reconsideration respect Finally, signifies it. “willful” the word an in- cons plan to kill which had tentional execution of been conceived and upon. 295] N. J. at [34 deliberated Ernst, Accord, 567, State v. 32 N. J. 579 (1960), cert. den. S. Ct. L. 943, 464, U. S. 81 5 Ed. 364 2d 374 (1961); 58 123, v. N. J. 128 Conyers, To (1971). State such support a conviction, much less it instruction, an is necessary that at trial establish presence concurrence v. Van 43 369, State N. J. Duyne, these elements. 378-79 cert. 380 U. 85 1359, S. S. Ct. 14 (1964), den. L. Ed. 60 Washington, 279 State N. (1965); 2d J. 172 factual Failure make this basic will showing a prosecutorial allegation defeat of first effectively Smith, N. 501; J. supra, murder. State v. State v. Ros cus, 16 (1954); Schilling, 95 N. J. L. & (E. 1920). determining A. whether the requisite has been made, factual court must view showing *10 the the State entirety, giving in its the “State’s as as well testimony favorable all of of its benefit could reasonably which inferences the favorable all 80, N. J. Fiorello, 36 v. State be drawn therefrom.” ; (1967) 50 N. J. 458-459 Reyes, State (1961); so, Having done 41 N. Loray, unless the issue to go not allow should the court that defendant of guilty find the reasonably could the a reasonable doubt. beyond offense case, it clear to facts of this becomes Turning was made. Consequently, not showing that the requisite have not been given murder instruction should first The fail indicate that defendant ever jury. proofs to to de or of John French. Although desired the death designed (cid:127)—(cid:127) he dislike for French which harbored distinct fendant — to at trial defendant’s reaction readily principal conceded one of fear. Even if the record supported the deceased was for John re inferences of defendant’s resentment French or to intrusion into to French’s visitation his lating rights with Mrs. French it does relationship (which Christener’s reveal an fear defendant’s actions not), all-encompassing and therefore are far from antagonist probative his intent or motive to kill French. Even he was any while in the act of very shooting, only defendant intended French, not to wound kill him. mitigate against These facts willfulness, is, that the intentional finding execution decedent, kill plan and against any suggestion had formulated such a plan the first place. that the fact emphasized State, Even if we consider a visit from expected Christener the deceased some Benjamin day home, and had his brought time during gun fails fact alone to establish the plan design element statutory proving premedita essential was not loaded when French shotgun tion. arrived trailer. Defendant did not even defendant’s bring weapon into the room until living deceased was just about to That home. a visit enter defendant’s expected was affords no to whether defendant “deliberated” insight prior In fact, evidence that Trench’s oc- shooting. fatal visit — one curred at o’clock in the after the morning long n —(cid:127) scheduled visit had been anticipated clearly negates inference defendant was somehow in wait for dece- lying dent. is further This supported by defendant’s uncontra- dicted and not unreasonable testimony that he sleeping when Trench began on the mobile banging home Be- doors. cause of hour of the unseemly visit, Trench un- fear which bounded Trench instilled in defendant, un- it is derstandable that defendant would be wary such a visit. *11 This, however, falls far short of the deliberation element in a proven which must be first degree murder case. As Paolo, v. Di was stated in State supra, the term deliberation more than presupposes something “intentional” and instead an assessment suggests pros and cons of the precon- ceived to kill. Absent plan any proof that defendant had a formulated such plan, attendant proof deliberation is lacking.
We conclude that of the specific none criteria for first murder was established in degree proofs this case that, an instruction as to this consequently, crime was un- the evidence and should supported by not have been given. therefore, It necessary, becomes determine whether the error in court committed plain this instruc- delivering tion.
B. a basic As criminal proposition law, a trial court not instruct as to may the elements of a crime which there is insufficient evidence to support conviction. one commentator states: As proper give instructions, which, though It is not for the court they embody evidence, merely a correct statement of the law of are
legal abstractions, they any where are not connected with Underhill, (5 in 1956), [2 the case. Criminal Evidence ed. § 550 1373] at Warren, 333-35; See at supra, § § Ernst, 32 N. at 573. Our consideration of supra, the court committed error plain by delivering whether murder, as to first must be conducted in degree light of the fact that did not return a verdict of first murder, but instead found defendant degree only guilty Because inclusion of a first mur- manslaughter. der not in the verdict which was ul- charge was reflected timately jury, reached in- arguable it struction was not prejudicial defendant. This is espe- cially true since the found jury only guilty manslaughter.
Two Jersey eases, New which bear a surface resemblance case, appear instant conclusion that de support fendant suffer any not In State v. prejudice. Moynihan, did 93 N. J. L. 253 & A. (E. defendant, who was 1918), murder, convicted of second degree contended that the trial did not judge properly first and distinguish second degree murder instructions jury. affirming however, conviction, the former Court of Errors and Ap not peals only found the erroneous to be favor instruction defendant, able to further but stated: appears As it the defendant was convicted of murder in the unimportant degree, under second it becomes the evidence whether degree. properly or not court defined murder the first *12 possibly prejudiced him, definition could not have erroneous since the practically acquitted jury degree him of murder in the first find- ing guilty degree. him of murder in [93 the second N. J. L. at 256-57] Adams, in State v. The defendant N. J. 1 was (1967) similarly convicted degree second murder. On appeal Court, this defendant contended that the erred judge in Ms motion for rejecting acquittal first mur- degree der. The Court upheld defendant’s conviction and observed that “in the of the light testimony and the second degree verdict, no harm could be said have resulted to de- the fendant from the denial the motion.” 50 N. J. at 4-5. While both Moynihan and Adams are related tangentially case, present the are they both readily and, distinguishable hence, are not dispositive the issue here. In contrast to the insufficient proofs case, in this the courts in the earlier decisions found factual implicitly for a first support degree murder instruction as well as for the charge second degree of which the were this ex- defendants convicted. As Court in pressly stated Adams: Viewing prosecution the evidence and inferences favorable ., enough beyond jury
. . there was from which a find could rea killing “willful, premedi sonable doubt that was deliberate tated” N. J. S. within A. [50 4] 2A:113-2. at .2
We are unwilling unable to reach a con similar in clusion this case. By our adherence to the prin general ciple that may instructions be where only they delivered are in supported by record, evidence we find that first murder degree in ease was and harm plain ful error a reversal. requiring decision, we making this do not latitude indulge same permitted Moy nihan and Adams courts to find any resultant error to be harmless by virtue that the fact lesser were convictions handed down. On the case, record in this a real there was possibility that could have found the defendant not Hence, guilty. the possibility that in the absence jury, of sufficient evidence to sustain first murder eharge, Moynihan, upon 2In the court commented the evidence which was presented in record: points Fantry All the evidence in the case fact to the that while sitting table, companions, at a in social intercourse with with any warning any provocation out part and without on his deed, person. commission of the to' death some shot We say act, by cannot below, the characterization the court blood, expression, as a deed committed cold person apparently trying who fired the shot was to commit doing might shed, murder or an act which cause blood to were not proper comments under [93 the cause. N. J. L. 256],
70 a verdict that Chris- suggests reached compromise have may instruction in by have suffered prejudice may tener To extent conviction. his manslaughter spite contrary in this result support two earlier decisions are overruled. they regard, we find inherent
The issue
prejudice
a New
been
directly
has never
precise
presented
situation
been considered
courts
court,
the issue has
Jersey
though
hold
uniformly
courts almost
These
in other jurisdictions.
consti
on first
murder
degree
unsupported charge
that an
a verdict
even
error
where
and reversible
tutes prejudicial
charge.
and lesser
different
returned
P. 2d 54
Ct.
360,
(Sup.
Colo.
369
Leonard v.
149
People,
where
reversed
manslaughter
of voluntary
1962) (conviction
on first
instructions
to support
there was insufficient evidence
State,
433,
165 Ind.
75
v.
Gipe
or second degree murder);
man
E.
of involuntary
N.
881
1905) (conviction
Ct.
(Sup.
reversed where there was insufficient evidence
slaughter
v. Mar
sustain first
murder
degree
instruction); People
shall,
Mich. 498,
1962)
cide than he argument guilty verdict, counsel along of a form of and advocacy finding exclusively the defendant to an devoted almost guilty degree absolute none of them in the second are murder yet error, individual down the effect was to wear their cumulative compromise perchance jurors, them to to cause of the wills homicide, degree agree rather than for a on a verdict lesser manslaughter guilty only was whether the accused consider rights prejudicial the de- to the innocent. We think it was 658] W. [216 fendant. N. P. in Tate v. 125 Colo. 665 People, 527, 247 2d Similarly, Colorado found an Court of 1952), Supreme Ct. (Sup. highly first murder to be degree instruction on unsupported defendant: prejudicial degree gave an instruction on first The fact the trial court proof, missing it in the murder when the essential elements are easily giving by the of such must be said that could infer present pre- in It an instruction that these were the case. elements jurors legal among discussion in sents technique, fertile field for not skilled compose finding opportunity differences welcome say agree upon compromise! it was verdict. We must give prejudicial error under circumstances of this case to proof in the
instruction on first murder absence of necessary [247 672] P. elements. 2d at Stahl, W. v. 234 Mich. 208 569, People (Sup. Cf. Gill, 43 Mich. 204 N. W. App. v. ; 1926) People Ct. 2d 699 (Ct. App. 1972).
While in have not had the jurisdiction oppor courts this tunity examine particular question, policy underlies the rule has been reflected cases con applicable sidering related matters. Por New courts Jersey example, have been reluctant sustain instructions homicide cases which were either or which confusing would have the effect coercing jury to reach a particular verdict. State Wynn, 21 N. Swan, (1956); State N. J. L. 372 &(E. A. This 1943). concern has been par ticularly acute where the confusion would result alleged *15 from the to inability distinguish between various degrees Bess, of homicide. State v. 53 N. 10 v. J. State (1968); Alexander, 7 N. J. 585 908, cert. den. 343 (1951), U. S. 72 S. Ct. 96 638, L. Ed. 1326 It also finds (1952). expres sion in our reconsideration of the propriety instructing a jury either to return a verdict of first murder or degree to acquit defendant, without in concurrently providing structions to intermediate charges. courts Although pre viously State, permitted such Roesel L. charges, v. 62 N. J. 216 &(E. A. 1898); State v. 82 Pulley, 579, N. J. L. 582 & A. (E. Merra, State 1912); v. Moynihan, supra; State v. 103 N. J. 361, Wharton, L. 367 & 5 (E. 1917); A. supra, 2099 269-70; at Annotation, “Absence of Evidence Sup § Lesser porting Charge on Degree Homicide as Affecting Duty of to, Court Instruct as Right Jury Con of, vict Lesser 102 A. L. Degree,” R. 1019 in re (1936), cent years has practice been To seriously questioned. extent, our large reconsideration of the “all-or-nothing” instruction has been on grounded coercive which effect it potentially exerts on jury deliberations. In State v. Sin clair, supra, this Court stated: jury in the between on the evidence case To to choose force the possibility acquittal degree de- raises the murder and first degree though might murder been of first fendants have convicted degree. guilt 543] N. J. [49 at of a lesser their was Accord, Mathis, 455, N. 467 52 v. 47 J. aff’d (1966), State
73 946, 403 U. S. N. J. 238 rev’d other grounds, on (1968), 404 2277, Ct. Ed. 855 den. rehearing 91 S. 29 L. 2d (1971), The con 31, U. S. 92 Ct. L. Ed. 2d 125 (1971). S. integrity cern which in these cases for the expressed is other about jurisdictions verdicts concern in parallels unwarranted verdicts. compromise
Besides com against contravening principle verdicts, first promise the trial instruction on degree court’s murder undermined concerning also a judicial policy which found presumption is when a murder is entertained eases, be unlawful. In such law the crime presumes Bess, to be v. v. second State degree supra; murder. State Gardner, Williams, 456-59; v. supra, State N. J. to favor This is intended presumption burden of proof the defendant emphasizing first degree before conviction for placed prosecution on first murder can sustained. By be instructing murder, effectively court the instant case subjected this presumption circumvented factual This in there no liability support. for which of the State’s light obliga should be examined struction doubt, the absence of facts beyond tion -to reasonable prove, reduce a See charge manslaughter. which would murder Wilbur, Gardner, 51 N. J. Mullaney supra; supra, *16 Robinson, J. at 48-t- 459; N. supra, Super, at 85. to provide us impel considerations policy
These crucial question. on this needed substantive guidance a judge for as error be Henceforth, regarded it should for which a charge criminal instruction on to deliver a jury instruc to support or evidence no, there is insufficient by inferred giv It be assumed that must tion. of charge the elements that instruction that of such an ing in legal are not skilled Jurors in the case. present were dif compose an opportunity welcome They techniques. verdict. See State a compromise upon ferences and agree Thomas, 1976). Div. (App. Super. We cannot under say the circumstances of this case sufficient first murder exists. This degree point is even implicitly conceded Brethren in by my dissent. their a Despite finding first be murder charge justified by of how a suppositions viewed jury might have evidence, the dissenters de- would, nonetheless, reduce fendant’s from 4-6 sentence 1-2 years years. This dis- position clearly is for anomalous a crime which dissent would otherwise portray as cold-blooded murder. The penalty which the dissenters recommend is more befitting crime, lesser and suggests concerning their ambivalence the result which they would reach the hypothetical proofs upon which it is predicated. Convictions for murder must be grounded more than or something possibilities sus- picions.
Ill for find We considered the other grounds appeal have them without merit. above,
Eor set forth Ap- the reasons the decision of the Division reversed. order new trial pellate is We consistent with the we have principles enunciated. in C. J. I concur (concurring). opinion
Hughes, However, Justice Pashman in majority. addition made in the I points majority’s opinion, would espe- comment fact cially upon tragic event occurred in the very home significance defendant. factor, feel, I be aby should emphasized specific approval court, us of relevant fol- was as : lows duty imposed upon person who, No to retreat is free* from fault bringing difficulty, dwelling on a attacked house. charge you I that a man is retreat not bound to from his house. may ground any person He stand his there and kill who enters purpose bodily committing great upon
force for the- harm one inside the home. *17 occupant any charge, case, of of the or I home the owner such causing great prevent may him intruder and from home meet the said taking necessary, bodily by any even to the rendered harm means intruder. of the the life you right regard to deceased] had no [the I that In this premises, presence in the violation of the in that his and be State. criminal laws this you principle applying all examine the evidence Before will from the evidence whether the defendant in the case to determine attack, repel is, such force that as used reasonable force he necessary protect family himself and members or believed they reasonably appeared as household therein in circumstances killing justifiable find, you If so and the him. is acquitted. shall be that in fact modern America day It is regrettable per- diminished because of the threat of has security phy- sonal on subway, terminal, Whether in bus on violence. pub- sical in in suburb well as park, lic street or sheltered public of violence. one feels the threat lurking in urban ghetto, and in broad attacked robbed daylight are Citizens being House, and other pub- shadow of State court house very There search for causes of this constant lic buildings. crimes drugs desperate Some point phenomenon. vi- juvenile Others blame satisfy addiction. committed breakdown, family whether from poverty, permissive- olence others stress violence of ness or other factors. Still hurt to criminal pain hard core who feasts predatory ex- a cause occasional Some indeed see as his victims. of law enforce- judges, lenience the inadequacy cessive ment. important In the context the cause is less than present —(cid:127) effect, life which obvious modern is seen fact rise in our society. of violence
But it has generally been that once sane- supposed tuary reached, locked, of home was and the front door — resumed, human other life satisfying part one could leave behind the travails of daily work or — street; travel and the dangers there would *18 — — a a shel- security, be of an of respite, oasis something from ter danger.
The of law sanctity home not the common is new. At it was official thought impervious royal even or intrusion. Mr. William Pitt the Elder in Parliament once addressing said: poorest may cottage The man hid forces his defiance all — — may may of the It crown. be frail roof wind its shake — — may through may may blow it the storm enter the rain enter (cid:127)— n — King England but cannot enter! dares all force not Brougham, cross the threshold of [1 the ruined tenement! H. His- in, George torical Sketches Statesmen Who Flourished Time
III, (1854)]. at 39-40 And our ancestors of immunity secured this from concept intrusion in the Fourth Amendment: * * '* * * * right people The of the to be seeure in their houses against seizures, unreasonable searches shall not violated be This protection “did but a embody principle English liberty, old, won, principle yet newly another finds ” m the maxim expression man’s ‘every home his castle.’ Fraenkel, Seizures,” Searches and 34 Harv. L. “Concerning Rev. 361, 365 (1921) (footnotes See also omitted). Se Case, mayne’s Eng. Rep. B. 4 W. (K. 1604); Blackstone, Commentaries *223.
The situs home, involved tragedy here was a albeit a mobile home. in any And fair view of the evidence it was the defendant’s home. moral The or other legal, status another of the home was occupant immaterial totally — present issue, something to be in another judged tribunal perhaps, under different moral concepts. fact matter a brutal, drunken, was that powerful and obviously dangerous intruder threatened imminent deadly harm to one within the and, confines I think, legally within protec- tion of that home. The defendant sought here to exercise — to do so and justification right and his that protection, court. by stressed properly think have been judged would conduct the defendant’s I — had case, if it “ordinary” in the standard different with a policeman street public us occurred, say, let lot with pos- parking corner, well-lighted or in a nearby home, un- an isolated But in nearby. help sible citizen after a forcible reluctant police, for help calls availing *19 harm such was deadly imminence of entry, violent and most extraordinary. ease is that the present charge the quoted I would view circumstances In these if it something that or with such approval court of the trial I would charge, in the general been included had not like it for alone deficiency ample ground considered such have of conviction. reversal in this joins concurring opinion.
Justice Mountain correctly The jury was (concurring). Schumbee, murder. first and second degree on the of charged elements murder, premedita- The essential elements of first degree and tion, willfulness, carefully fully and deliberation were de- murder in second defined. Complete explication court that charged and followed. The gree manslaughter individual mind has arrive at conclusion [his] “[e]ach each in view the oath he has juror, and separately, having thereunder, taken, and and her duty responsibility a rea- beyond should his and her own mind convinced have or can doubt all the evidence before he she upon sonable In its conscientiously sup- consent to verdict of guilty.” instructed: plemental charge jury was your contemplates yon discussion harmonize shall The that law compromise, divide, you possible, not that shall but views if purpose arriving yield your personal at an convictions agreement, [emphasis supplied]. of murder is not consonant finding guilty jury’s The evi- there was not sufficient that opinion with the majority’s deuce to of first murder. justify The charge jury found as fact that of first and elements second degree were was murder The situation the same as i£ missing. written jurors had responded interrogatories of no malice. they findings premeditation and no pronounced conclusion that conviction majority’s manslaughter Noth conjecture. was a sheer compromise speculation reached in the record the three verdicts ing supports not with the instruction jurors comply did opinion Nor were their convictions. they not to compromise jurors to the effect be found that the such any support can instructions. and the trial court’s oaths office their ignored to self-defense respect evidence the State’s Although sufficient submis was to cause it very impressive, was not fancy It is intimate jury. pure of the question sion a result verdict as a manslaughter upon they agreed or not there Whether positions. of different a settlement first degree submission justify enough in ascertaining is not relevant murder result. its reaching compromised whether the error, if *20 here, any, circumstances under the event any harmless. was charge first submitting v. Adams, Moyni 1 State N. J. (1967); v. 50 ate St han, 1919). L. & A. N. J. 253 93 (E. rule Michigan adopted has apparently
The majority a trial judge for error reversible automatically that it is if there a criminal on instruction deliver v. People instruction. to support insufficient v. People W. 535 (1975); 227 N. 2d 460, Mich. 393 Vail People 422 Hansen, N. W. 2d 344, (1962); Mich. 118 368 I 309 N. W. 2d 498, (1962). 115 366 Mich. v. Marshall fur- will not inflexible principle to an assent cannot unnecessary trials will add and justice cause of ther the system. judicial criminal overburdened an already murder, manslaughter been having acquittals There use of on the defendant’s probably predicated was conviction or defense in self-defense force excessive unreasonably motion on the in his argument The Erench. Mrs. ex conclusion of jury’s that the contended a new trial for The of the evidence. weight against force was cessive new trial simply motion for the court denied trial It did was a jury question. self-defense remarking to test whether the proper principles apply not expressly Sims, 65 N. J. 373- warranted, 359, v. new was that ac Division approved the Appellate and 374 (1974), Court evaluate appropriate assuredly tion. It is Anastasia, Kul 55 N. J. 2(1969); Dolson v. record. Sobchinsky, (1963), concurring opin backi 454, and Haneman, dissenting opin ion Justice Justice Justice Weintraub, Justice Jacobs and ion of Chief Erancis at 459. Erench came to home
When John the defendant’s mobile in a 3:00 drunken state before a.m. on October shortly 1973, it not to visit infant was his His daughter. banging the storm door and obscenities led to the defend shouting for aid. was phoning police ant’s As door giving defendant went way the to the rear for his On shotgun. room, return to he living who, his shot Erench having down, two doors had home ripped entered the Erench or the defendant. What pur toward Mrs. moving had to break into the at that could Erench have home pose harm to inflict on Mrs. Erench and the de hour except Both Mrs. Erench the defendant justifiably fendant? defendant, Erench, after no warning feared him. had reasonable choice to use He was un except gun. other to retreat duty using deadly der no before force. State Bonano, N. J. 518-533 A canvass me entire record satisfies the verdict was against and it clearly the evidence weight convincingly ap that there was manifest denial of B. 3:10-1 justice. pears *21 B. 3 :30-1. I would reverse and remand for new trial. D., P. A. Assigned Temporarily (dissent-
Contohd, I cannot concur in the court’s mat- ing). judgment ter. I excessive, however, the sentence as would regard it, but otherwise the reduce would affirm conviction of de- fendant for manslaughter.
It is held the by court that there was insufficient evidence to sub- go jury on first therefore degree murder and hav- mitting was reversible error as jury on ing had the capacity induce the compromise is verdict rather The manslaughter position than acquit. one never in his defendant, heretofore even by advanced for petition It certification. cognizable is therefore court only plain error grounds.
I find no error in noted, the respect much less error. plain The rule on controlling the sufficiency of the State’s proofs to make for a jury issue (or to withstand a motion ac in a quittal) criminal case, a rule not the ma disputed by jority, is that “the evidence and the inferences reasonably to be drawn therefrom must be viewed in a favor light most able to the prosecution. If, on such consideration facts, could find the reasonably accused be guilty yond a doubt”, reasonable the ruling must be for the State. Franklin, State v 52 N. J. 386, 406 (1968); State v. May berry, 413, 52 N. J. Fiorello, 436-437 (1968); State N. J. 80, 87-88 this rule on applying review of a trial determination, allowance must also be made for the right of the jury to determine the weight credibility of Forcella, the testimony. State v. 35 N. J. 175 (1961). me, effect, opinion appears majority disre- fundamental principles these review in regard appellate This made manifest criminal cases. recital of Ear from fa- according facts therein. “most and inferences proofs vorable” version therefrom the the defense opinion gives does the reverse. proofs It of total credibility, accepts testimony of presumption Erench as defendant and Mrs. to defendant’s conduct on Oc- because dece- (unrefutable tober death
81 in its most innocuous dent) light, those downgrades State which, viewed, could a indulgently permit proofs, finding willful, deliberate and premeditated killing of the victim defendant. by
Under the could have proofs, jury made or drawn all any or following findings inferences. Defendant disliked the decedent and angrily told the Newton police chief, only two before “I weeks killing, have down gun at the tavern and I will shoot the son of a bitch.” See odian, v. State Slob 120 N. J. 68, 75 Super. (App. Div.), certif. den. 62 N. J. 77 (1972). Defendant disliked the dece only dent not because latter was a drunken but bully because he was still married to defendant’s paramour, was on his insisting court-ordered right child, visit his then in Mrs. Erench’s custody, was an obvious nuisance obstruction to defendant’s free and unencumbered relation ship the woman. thus had Defendant a motive to elimi nate decedent. State Seefeldt, 51 N. J. Cf. MacFarland, State v. (1968); 83 N. J. L. 474 & A. (E. Abbatto, 1912); N. J. L. 658 &(E. A. 1900). As both defendant protestations and Mrs. Erench of their mortal fear of harm at bodily the hands of dece- dent, had jury ample basis to discount this they substantially. Although testified that decedent made numerous on their as well threats as lives on the life of could daughter, jury his have young concluded there was of any no credible evidence attempt by decedent to execute They threats. have found might such there were, at most, one or two isolated assaults on Mrs. Erench which did not medical apparently require attention.
Defendant for prepared decedent’s anticipated visit to the where trailer defendant maintained Mrs. Erench, scheduled 30, 1972, by September bringing shotgun to trailer there, for him even and waiting though decedent’s previ- declared ously only to visit purpose child. could have well discredited defendant’s testimony moments not loaded until gun was before decedent’s could also taken have the trailer. The into
breaking shotgun disperse from tendency pellets notice proofs verified area, particularly over a wide during chest the victim from the removed were pellets de substantially discredit turn, could This, autopsy. *23 but for decedent’s arm aimed that he testimony fendant’s movement, bodily the latter’s chest because of struck formed that defendant an inference support well and could subject on the deliberated previously having the purpose, kill when arrival, to decedent decedent’s awaiting while law it is settled regard, trailer. In this the if he entered in time need of length “No particular that in this State kill and of the to purpose formation the between tervene that the deliberation necessary not It is its execution. a minute. It for an hour or should continue premeditation fully kill be conceived design that the is enough 544, L. N. J. v. 77 Mangano, executed.” State purposely DiPaolo, 34 & cited in State 1909), 546 A. (E. N. (1961). morn the fatal conduct on
In reference to the decedent’s belief on have reasonable rejected any a could jury ing decedent, unarmed, represented that the of defendant part either to or bodily a harm threat of serious such him short have called for at the shooting Erench as to Mrs. a so a weapon of a room with lethal living trailer range to what Of statements as contradictory defendant’s shotgun. the immediately shooting the doing prior decedent was that was moving could have credited one decedent jury the circumstances, wife, with other from his away thereby, along pur was not for the shooting that the warranting finding of her but wanton and intentional.1 pose protecting unnecessary emphasize foregoing 1it should be for me to appraisal my facts, being inconsequential, is not own but properly jury trial should have court assumed the might make, prerogative. fact-finding within their sum, and without further In extended illustration of my from was well within the point proofs, judge cited above guidelines the issue precedential submitting of defendant’s But guilt first-degree jury. murder so, even if this were not one cannot to the con lightly jump I am clusion reversible error. to concede sub willing it stantiality court’s thesis that in a possible, given case, that the of an jury submission unwarranted charge of first murder where the are of a proofs susceptible of innocence lead to a finding may compromise verdict o£ a lesser degree guilt rather than the which the acquittal would otherwise have returned. But here court fails appraise likelihood that such result transpired below established criterion whether there was “real” that, possibility a “reasonable” whether, doubt as to the error led the to a result it otherwise might not have Macon, reached. J. 325, terms rule, practice error is to be disregarded on ap *24 peal “clearly unless of capable an unjust result.” producing R. 2:10-2. Administration of criteria those must be made in the of light the entire record. viewed, So I not would error, find if conceded, to be I reversible. believe the is strong probability the that determined that the de fendant feared by attack decedent and intended act in self-defense defense French, of Mrs. but used unreason excessive force ably in that endeavor. The defendant lack malice, the ing jury found him of guilty rather manslaughter than murder, following the court’s instructions in that In I regard. short, fail to discern any reasonable possibility that the manslaughter verdict in this case was compromise one rather than true assessment of by the degree of defendant’s culpability under the evidence. I would, not
Although accordingly, reverse convic- tion, I of would reduce sentence imprisonment imposed trial court. Defendant has no criminal background, rehabilitation, for subject prime is found was effect, had jury, to have no malicious intent in this light that sentence episode. prison unfortunate Bess, J. 10 excessive. State clearly 4-6 years two years. I sentence one to would reduce the that majority my conclusion observation anomalous for a crime “clearly sentence is reduction a cold-blooded would otherwise as portray the dissent as to sentence is My predi- is not valid. position murder” committed actual decision that the crime on the jury’s cated it I thought not murder. should have manslaughter, sufficiency view my obvious on a view to a of murder was founded relation I take. might which the jury legitimately of the proofs supra, in footnote emphasized, have expressly my reflect own necessarily does not analysis proofs fact, which would “inconsequential”. be findings error, other assertions defendant’s detailing Without of them. any merit in I find no in this opinion. joins Justice Clifford Scheeiber, J., in the re- Hughes, concurring J.,C. sult. Hughes, Moun- and Justices
For Justice reversal—Chief Sullivan, tain, Pashman and Scheeiber—5. Judge
For Conford— n %. Clifford affirmance—Justice