*1 99 JERSEY, PLAINTIFF-RESPONDENT, OF STATE NEW JOHN LOUIS AND VASZORICH GEORGE LOUIS CHRIS BROWN, TIAN DEFENDANTS-APPELLANTS. Argued 1, 22, June Decided June1953. *6 F. the cause for appellant
Mr. Edward Jusha argued Vaszorieh. J. the cause appellant
Mr. William for O’Hagan argued and O’Hagan, attorneys). Brown Stout (Messrs. Prosecutor, Monmouth
Mr. A. Assistant George Gray, J. Victor the cause for County, respondent (Mr. argued Prosecutor, Gray Mr. Carton, attorney; County Monmouth the brief). on of the court was delivered
The opinion Vaszorieh and Jr., Appellants William J. J. Brennan, convicted Brown, appeal,'were and one who does Berry for the Court an indictment County upon in the Monmouth 8, 1951 of Jeremiah Delhagen. murder on September death, and Brown and Berry, was sentenced to Vaszorieh recommendation, to life imprisonment. the jury’s upon and Berry and both Brown was 19 years age Vaszorieh was committed. were 17 when the crime in four-room decedent, 60, lived alone bungalow aged 8, he late of September In the evening at Wayside. the three youths, in his room when living in a chair asleep earlier made days with a some plan burglar- in accordance entered a bedroom adjoining and Delhagen, ize the house rob the front a window opening room through the living Mr. the house obtained into Vaszorieh Before going porch. wrench, some 17 inches long, steelworker’s claw Delhagen’s immediately went almost from cellar. Yaszorich man about the sleeping room where he beat living brutally wrench. When numerous times with the heavy the head rise, hit, decedent, awake and not to be struggled begging subdue aid and helped to Yaszorich’s Berry Brown came him with some in binding him until Yaszorich succeeded in one of which found Berry tree of Christmas lights strings furniture were also piled and some the bedrooms. Pillows and Brown had stripped him. Meanwhile Berry on his trousers, pocket took from of his Yaszorich decedent The search $300. approximately a wallet containing and a wrist watch continued house for other valuables was *7 to to struggle get were taken. The decedent continued gun him the kitchen and into Yaszorich whereupon dragged up, with the wrench and piled the head beat him about again him, and furniture, upon and other pillows things blankets the front of the he Brown and at Berry after which joined the three left. in the and house, yard threw the wrench front had nearby. an automobile they parked drove They away with whom John Dean or Dino by The car was owned one it. En route the use of lived and who allowed Brown Brown each Berry Brown and River Hills Yaszorich gave to Shark wallet, the and threw the money gun the stolen one-third of window at different places the car and the wrist watch out of bloodied considerably became Yaszorich’s shirt way. on the they and when Mr. Delhagen, the assault during shirt, his he to burn River Hills attempted reached Shark was the three confessed shirt after unsuccessfully; but also had Berry Brown and the authorities. recovered by The three went to a diner clothing. on their stains blood and then sat in' a washroom where washed they up in Belmar and sandwiches. a meal of coffee pie, down to in some to way Mr. managed In the meantime Delhagen summoned the police. who home of neighbor to the get Fitkin Memorial but Plospital taken to immediately He was and died in the early morning treatment respond did not was an autopsy Later same morning 10. of September disclosed the blows with the wrench This performed. and There caused a skull fracture intercranial hemorrhages. his and distributed were lacerations on head four others shoulder, hand. on the left arm and wrist and a number of some points, applicable Appellants argue will be one of them. The only points both others to under topic considered appropriate headings.
The Confessions Vaszorieh error in the admission of his confession alleges it was into evidence. He contends that the show that proofs law, the time of voluntarily matter of that from given his arrest on October 1 until the confession early signed end every day on October 4 “he was for hours on questioned cells; in and waves of was taken out of by inquisitors; moved around to various police headquarters throughout Freehold; at was taken out by and to county jail items used con- detectives to look for various allegedly crime; psychiatrist; nection with the was taken to and in little food at hours very general, was given irregular was applied by police trick every pressure psychological detectives attached by authorities of various municipalities, the Assistant Prosecutor the Prosecutor’s office concludes, “It cannot said on the himself.” The argument a statement a nineteen year bare record itself that given detention, boy days after hours and of questioning, illegal old *8 to another meals, from one station police irregular shifting authorities, at all times of by groups questioning and faced voluntary.” be possibly can that Vaszorieh was the helpless
This proposition
“suction”
is
reprehensible
process
of a relentless
victim
testimony.
even in
own
his
governing
without support
have
discussed in
this
been
several
question
principles upon
would
served in
and no
be
opinions
purpose
our recent
of
2
v.
N. J. 540
Cooper,
(1949);
them
See State
again.
stating
839,
340
Bunk, 4 N. J. 461
cert. den.
U. S.
(1950),
State v.
Pierce,
v.
4
J
25,
252 (1950); State 10 J. 532 Cooper, N. State v. (1952); - Grillo, 11 N. J. 173 -, cert. den. 73 (1952), U. S. Gt. S. 1123 The essence of the (1953). is whether in inquiry obtaining confession there was funda observance of “that mental fairness essential of very concept justice,” for “the aim the requirement of due is exclude process not to evidence, false presumptively but to prevent fundamental whether, unfairness in the use of evidence true or false.” Lisenba v. People 219, State 314 California, U. S. 236, 280, 62 290, S. Ct. 86 166, L. Ed. And (1941). “Whether a statement is, fact, or confession in' voluntary, depends on the facts of the individual and the case determina tion trial court will not disturbed on where appeal the evidence is to sustaiu it.” adequate State v. Cooper, supra, J.,N. at 550. Here Vaszorich admitted that after his arrest on October 1 at his mother’s home in Ocean Grove he was first taken to the local police station and there turned over to the Deal police who took him Deal police station where he stayed until the next that morning; during of October 1 he morning was questioned about matters other than the case but not at all in Delhagen the afternoon or early about evening that he anything was inter except viewed some reporters; that he was first questioned about murder Delhagen at about a starting quarter before eleven that night him, continuing, until according 1:30 in the 2, of October after morning which he was not disturbed until 7 :30 that when morning county authorities took him into and he custody before a arraigned magis trate murder; charge following ap he was taken to pearance at jail Freehold, the county seat, and from there to some place, Berry, on an not connected with investigation case, and Delhagen for a time the afternoon was with during the Director of the Marlboro, at Hospital psychiatrist, to the returning jail about 7:30 that after evening, which he was not dis turbed through night; throughout day, October 2, little was him said to by the authorities about murder; that on October 3 he Delhagen was not interrogated
109 about him inci the case as officers mentioned it to except woods”; while the that on October dentally “walking through p. 4 he at about 2:30 brought prosecutor’s qffice m. to be about the murder and that in the questioned Delhagen statement, course of the he it and afternoon his gave signed initialled the need refer to several we not Plainly, pages. the other abundant of the proofs supporting finding trial in order con to demonstrate Yaszorich’s judge Grillo, tention is without substance. wholly Cf. sense supra. any recognized coercion” “Psychological the law was not Stein v. the State proved. People See York, New 73 1077 S. Ct. (1953). not
Brown’s contention is that the trial erred in judge “whether the as Brown jury, requested, instructing is a statement of Brown was made or not voluntarily question to be and in instead: “Where you,” decided by charging there is a as of a voluntary to the character statement dispute defendant, made court must or confession trial by pass This after receipt of the confession. Court quality for character testimony voluntary and against has admitted statements made these three defendants them are now part parcel into evidence. confessions case, is left for the of all evidence this when they decide whether the defendants the truth spoke words, In within their province confessed. other them, as them, you can them or choose.” accept reject weigh withdrew entirely not see that the trial We do judge from of the voluntariness of Brown’s confession the question with the fact that when considered jury, particularly was: “If number which Brown’s charged request judge taken from the defendant George find that the statement you him, made voluntarily Christian Brown Eugene the law not to exclude that the is you requirement I charge false, which is presumptively from consideration evidence evidence whether unfairness in the use of to prevent but view But, even Brown’s true false.” accepting it is in this State settled effect of charge given, volun- not a confession is the determination whether or since *10 tary evidence, its in governs competency to be received factual in determination whether it is should voluntary first instance made the court consistent with the by prin that matters exclu ciple of the evidence are competency of for the sively was, therefore, court to decide. It not error of the in leave upon confession evidence to receipt confession, jury only of the of the question credibility believe, not, Cole, the facts set out therein. State v. 136 N. L. 851, J. 606 & cert. 334 1948), A. den. U. S. (E. 1503, 68 Ct. 1773, 862, 1519, S. 92 L. Ed. 334 68 Ct. U. S. S. Ed. 1782 Foulds, L. 127 N. J. L. 336 (1948); & A. (E. 1941).
We observe in that the trial of the passing judge finding that Brown’s confession was is sus- voluntarily fully given tained Brown’s own in by testimony. He was arrested early of October 1 at the home in Park morning Asbury (cid:127) Dino, John Dean or with whom he lived. He was detained at the Park during morning Asbury police headquarters and questioned about matters other than the mur- Delhagen der. He was then taken to Deal station. He police was first questioned about the murder that and within Delhagen night an hour confessed to his He was part. not disturbed during and admits that the night when following shown morning his statement he read and completed and initialled signed each in the a presence of It page press is photographer. admitted on his brief that he was taken a before magistrate shortly afterwards the same during morning arraigned on the murder charge.
Nor do we merit perceive in the on any his argument brief that he was entitled by provisions of the Juvenile Act, and Domestic Relations Court R. 9:18-12 S. et seq. N. J. 2A :4-14 (superseded by S. et to be in seq.), processed the Juvenile under Court the procedures under applicable law to juveniles between the 16 and 18. He ages concedes that that court was without him jurisdiction to try an indictment for In Mei, murder. re 122 N. J. Eq. 1937). & A. And the amendment R. (E. S. 9:18-12 1191, 1948, 284, L. c. p. authorized the referral expressly
Ill 16 and 18 between the case minor any involving ages nature” “to the prose- with an offense of a heinous “charged wherein the court is situate” cutor of pleas county manner as other any to “be dealt with in the same exactly criminal case an adult An order of offender.” involving referral the statute was entered on duly compliance 3 and October was received evidence.
Brown also error the trial judge sustaining alleges asked to a objection hypothetical question psy State’s chiatrist that he was a psychopathic who testified for Brown it is said personality susceptible suggestion. question, *11 brief, elicit the of the expert on Brown’s to opinion sought in the “he was impelled witness whether confession making the officers to do so” of alleged police suggestions “that would him” if he did. It is not made be better for how, true, if this would make clear on brief just However, in the sense. involuntary confession legal in was not whether produce opinion to question phrased The involuntary. such case the confession was or voluntary or not witness was asked to state his “whether opinion George the mental Brown, the characteristics and capacity having in my have testified and which are incorporated to which you made that would able to resist question, suggestions him make a statement.” Counsel it would be better for to objection in the of the on the State’s
insisted course argument had whether the witness that this was tantamount to asking due a an whether Brown’s “statement to opinion [was] that made act, was it due to a voluntary suggestion did not but him someone?” The trial court agree, rephrase question offered counsel the opportunity him?” form, ask Counsel did you don’t “Why saying not, that, sir.” The fact is that stated, “I shall rest on but he answer the witness had could not responded earlier asked, he was “Can when the same yes hypothesis or no whether the statement so certainty tell with reasonable you Gene Brown? was the act of voluntary made and signed There was no error Did it come of his own volition?” in the circumstances. the trial court’s ruling Manual Ti-ie Jurors5 Instruction drawn reported When the from which the panel pamphlet for member was a bine-covered service each given Jurors,55 endorsed'“Compli- entitled Instructions “Primary was not This County. of55the Sheriff of Monmouth ments under the direction the “Manual for Petit prepared Jurors55 manual of this authorized only type of this court and now the The distribution in the courts this State. challenged for of or mis- inaccurate wholly contains a number of pamphlet law which is statements of of propositions among leading com- here, namely, that which controversy occasions under our erroneous definition of reasonable doubt pletely the last quotation law. There is on imprinted page also lies as follows: “On the head of criminal from Lycurgus de- crime; in a justice jurors but miscarriage participants become linquent guilt.55 the trial counsel discovery by judge copies members of the were panel possession exami- made in the course of the voir dire was first pamphlet the time the 14 nation and at jurors only of prospective had The selection of selected been chosen. ultimately November 26 to over two weeks from jury required 10. The trial the com- immediately upon December judge the prospective juror the voir dire examination of pletion the fact became known promptly whose interrogation during *12 dealt as follows: problem with May book, please? I blue “The Court: see that Yes, sir. Mr. Juska: authority this book I don’t know whose entitled The Court: ‘Primary .Compliments Woodring, Jurors. of Morris J. Instructions to County,’ supposed Sheriff, Monmouth which booklet is to contain jurors, permitted given primary instructions to was to be to the any county jurors. judge I that in this has authorized don’t know book. At least I find nowheres contained therein the issuance of this such authorization. opportunity carefully,, it I I not had the to examine too but have might misleading it when in the can understand where hands laymen nothing law, going about I am who know and therefore pick up every you from each and one to instruct the Sheriff to panel serving question, on this the books in in- who are eluding jurors already tlie five who have been sworn. It has been practice inception in this since the the new Constitution jurors give prospective general opening instructions concerning responsibilities of the session their duties in a and their general way, judge practically then almost each individual re- you peats nearly you when the same instructions to are sworn in a particular case. given you by In view of the fact that the law Court and is you system under the must take the law from and not the Court Sheriff, asking picked up I from am that these booklets be Sheriff White now. May they list, your Mrs. Lewis: retain the Honor? Yes, they may The Court: list. retain the right long juror That’s all as as he doesn’t have it in here. One home, go the box. has at his but he won’t be able to home. So it any good. him won’t do May I Mr. Juska: be heard? The Court: Yes. defense, sir, Mr. Juska: The would show that like the record to pursuant your Honor’s Numbers' instructions the box 2, question. 3 and 4 returned to Sheriff While the books in 2, happened The Court: 3 and 4. What to the other two ? Where yours? is my bag. Juror 1: Number Mine is other home you yours? The Court: Where do have Juror Number 5: Mine is in another suit. home may The Court: It be noted that all the books available that are except two, 5, Juror Number 1 Juror have been Number picked up. May copy Mr. Juska: we now have of the book marked into evidence ? purpose The Court: isWhat it? you orally Mr. Juska: want Do it here or at the side bar so may part that it not become of the record? (Counsel bench.)” confer the Court at the Yaszorich that it error was argues to receive the in evidence pamphlet either at that time or a number days later 17, on December the last on which day was testimony renewed, taken, when his counsel the offer of the pamphlet evidence “as of my case.” note part We the record does not disclose that on either occasion trial in- judge formed of the of the offer. We purpose are told on brief it was “so that his record be made (Yaszorich’s) might for review.” It is also argued error for trial “not to declare a judge mistrial,” although no for a motion *13 114 the record. by
mistrial of defense counsel is shown by any trial judge In the this court and the circumstances both did well that counsel justified might concluding the break-up view the as to call for situation serious enough trial action of the trial and was content with the court’s that they the jury the and in up instructing taking pamphlets shall deal However, the we were to take the law from court. is made the brief that Yaszorich with the contention on a reversal on the ground entitled to of his conviction and incorrect, prejudicial “this booklet is inflammatory highly to the defendant.” 7 J. Co., N. Panko v. Flintkote
Vaszorich relies on 266 Jacobs, N. J. Super. Palestroni (1951), the Div. Those cases down 1950). lay principle (App. influence matter the for tendency improper irregular having and the the proofs “in a manner inconsistent with legal Co., J., 61, 7 N. at which v. Flintkote charge,” court’s Panko the deprive party the under which jury circumstances gets to rebut or counter affected it of the adversely opportunity nullification influence, reason for act such be sufficient may further as to inquiry verdict without jury’s minds. the jurors’ effect matter upon actual irregular annulled verdict was because jury In each of those cases had such as opportunity irregular affected no party retired and matter after the had jury during reached is those decisions their deliberations. But principle here; at matter came to light not applicable irregular full trial had a all and the court time when parties influ avoid any improper to take steps ample opportunity the minds of the jurors pro ence the manual upon in the circum The real is whether spective jurors. question case, reference to the precau with particular stances of dispel trial was done to tions taken judge, enough influence. the manual for improper of the contents of tendency the trial dis and firm action of judge think the We prompt sufficient in the record above was from excerpt closed by motion for from the fact no Apart the circumstances. denied, made and made, even if one had been mistrial
115 is not generally that a mistrial declared. It necessary will suffice ordinarily that the trial in instruct the judge definite and the the unexceptionable terms of upon right matter, which we think the in case, trial did this both judge at the time and later in his when he instructed them charge, that the jurors were to decide the evidence case the upon alone to law as he them. according it to gave Cf. v. Bolles, 13 N. J. 273 Misc. Ct. (Sup. 1935).
Counsel for Brown did not in either of join proffer pamphlet Yaszorieh, evidence made counsel for but error in the argues trial refusal make judge’s a requested “I charge, you that a is a charge reasonable doubt doubt reason, for a juror doubt, but a existing may have reasonable unable though and give good sufficient reason for the doubt, words,” express it us on the brief that informing to make charge certain that the were requested jurors not misled by the definition of improper reasonable doubt the manual and particularly sentence, erroneous obviously law, under our that “a which, reasonable doubt is one for should he be called a can juror a reason.” upon, The give trial refused to judge charge request upon the ground made charge subject of reasonable upon doubt covered the We submission. did and find no agree error. The submission was fully embraced within that part of the which instructed the charge jury that reasonable doubt which, “refers to that state of the case after the entire com and parison evidence, consideration all leaves the minds of the in that condition that they say cannot they feel an conviction a abiding to moral of the certainty truth The evidence must establish the truth charge. of the fact to a moral certainty, certainty convinces directs and satisfies the reason and understanding are those who bound judgment to act conscientiously State, 26 Donnelly it.” N. J. L. 601 1857). A. (E. & Night Trial Sessions Both assert appellants prejudice allegedly resulting of the 10, from continuance trial sessions of December
116 recess, 12 a dinner until after through evening, The trial ordered the sessions after o’clock. judge evening as required authorization of the Chief Justice
securing Al. is stated by Bule The basis of the asserted prejudice brief: “The such burden upon on Brown’s placing of the is a guarantee counsel denial constitutional counsel.” representation by right his intention have eve- The trial first announced judge 7, no sessions December ning objection on Friday, *15 10, after selection on December interposed. Monday, Again, the the statements completed was before opening counsel, I am “Incidentally, announced: going judge to work until nine o’clock so accord- to-night, guide yourselves It not until no was was Again objection interposed. ingly.” that day the close of afternoon session on before shortly reconsideration, asserting that all defense counsel requested trial is “that the of murder “reasons of health” and burden hours.” reasonable beyond without 'sufficiently sitting grave made. objection This the extent of any was contention is that counsel’s representation The of the gist be under what it should of their clients’ interests not period sessions after protracted the strain of evening show We think that counsel to select required jury. were assigned by Both modesty. undue understandable but clients. defense of their respective the court to the efforts and' in their were record exhibits that they unstinting their experience fully of their and gave unsparing energies to a fair rights of their clients’ in the ability protection expressed earned the commendation They richly trial. trial. Their per- the conclusion the trial at judge of the bench vindication of the policy is another formance accused indigent which assures of this State and bar find We in court. do on his day representation proper Brown in of Yaszorieh that rights evidence slightest counsel their added strain any from suffered anywise sessions. the night incident Rulings During Trial Brown asserts error denial of his motion for a mis- trial after the trial sustained his objection to a judge ques- tion Brown by asked his cross-examina- prosecutor during tion while in his defense. testifying was, own The question “How soon after the job you were involved in Delhagen another armed ?” Brown robbery contends that he was entitled to a mistrial because the prosecutor by question to show that attempting improperly Brown had com- mitted criminal acts for which he had not- been convicted and which were not connected any with the way indictment in. for murder on which he was tried, and the evi- being did dence not fall within any the rule exception to making such testimony ordinarily inadmissible, State v. citing DePaola, 5 N. J. 1 (1950).
But Brown’s on his direct testimony examination was had he abandoned the common scheme of Del robbing he when “all the hagen saw blood and and that everything,” he had become “nervous sick” at sight Delhagen’s blood. before the Immediately at issue question he had answered the prosecutor “shame” he felt during and murder was not robbery alone for his in what part *16 was to but “for both” happening Delhagen the and robbery the murder. The trial judge might thus well have viewed the to be question proper upon the of authority Barth, State v. L. 112 A. 114 N. J. &(E. 1935), where it was held that a defendant, on trial for murder committed in a attempting who testified that after the robbery, homicide he suffered remorse, from was properly cross-examined to show that within a month thereafter he was involved in five other rob any event, beries. In after the objection and after sustaining extended the motion for upon mistrial, argument outside the the trial jury, the presence judge summoned back jury to the court room and “I now, stated: you as em charge how, Ias know to that all phatically disregard It together. hasn’t a to do with the trial thing of this case. The court ruled in favor of the defendant has Brown in connection it. So it is not He need not answer
with that question. it.” think this instruc- and will We you evidence disregard the sufficed in clearly tion circumstances. in of his overruling error the alleges
Brown also him, his where to concerning to two objections questions put arrest, his the his cross-examination night abouts before his confession the when the voluntariness of while on stand were: “Were you under consideration. The questions was answered, to which Brown Deal police headquarters?,” at in the not,” custody police and “Were “No, you any I ’ time, other county any that detectives officers during “No, authorities?,” was, answer the again enforcement that contain not.” Brown argues questions I was his to his despite insinuation” prejudicial rights, “harmful answers, that had been other implicated “Brown negative his to arrest had been prior doing and that Brown crimes have in the Deal he been Police for which should something our examination the full We think from Headquarters.” in which testimony appear questions- context of event, In any strained. questions inference is most ruled, the trial court test as clearly .were proper, his claim on direct examination that of Brown’s credibility at home night sleeping. he had spent he prejudiced by Vaszorich contends his counsel’s interrupting judge opening trial action state counsel to his defense. We have press at that point perceive no colloquy impro examined in the the trial circumstances. judge priety The Prosecutor’s Summation both for is urged appellants alleged error Reversible statements outside evidence inflammatory prejudicial his course summation. prosecutor had occasion to observe that recently We have com not in upon matters evidence attorney by prosecuting ments with his and inconsistent obligation under improper is highly *17 Professional of Ethics. 5 of the Canons Canon Lieberman, and Bogen 13 N. J. 137 We noted (1953). also case, however, in that the evi- every excursion outside dence will not vitiate a and necessarily conviction that on question whether shall comment have that improper effect, the by trial making timely counsel of and proper objection and the action of trial connection judge therewith are ordinarily considerations. controlling
There are three from the excerpts prosecutor’s summation which to objection is but from the record it assigned, appears that none was objected to when and that objection delivered was first interposed each of them after trial had judge permitted to retire to their jury hotel for lunch instructions to “return here at a of two.” The re- quarter on behalf of both quest defendants was that be jury “asked to the remarks “and not disregard” to consider them” which, course, would not be done in the jury’s absence. The court stated that he would cover the accordingly sub- in his ject Upon the return charge. jury’s from luncheon recess court immediately At the began very charge. he outset emphasized function of the jury decide the and to facts about the facts which he disregard anything if their his, recollection did not might say accord with too, then stated: “That ladies and gentlemen jury, to statements made applies by any the counsel. Arguments counsel are evidence.” Lieberman,
In State v. Bogen supra, we held remarks were not a for improper basis reversal in of the facts there presented that some light objected were not to, others were to and objected with upon objection were to, drawn and where prosecutor, objected whether with not, the drawn or trial instructed the judge jury to disregard Here under the them. circumstances that no objection was made after the was until excused so that the impropriety the remarks could not have been dealt with by the judge, withdrawn perhaps prosecutor, at time when them, if instructions that was the disregard view, court’s effect, when best we might cannot given say what in that said in the charge regard inadequate. The *18 120 told jury not evidence and the properly
summations were the evi only to be had upon their deliberations were con our careful dence. is strengthened Our conclusion of the circum comments in all irregular sideration are convinced case, from which we stances of the combination, such errors in are not remarks, “plain or singly that we should defendant” substantial rights affecting Rule 1:2-19 (a). moved exercise our under powers The Verdicts each that the verdict against contend Appellants v. State expressed under principle defective fatally 2 Cooper, Ct. State v. Turco, 1922); J. L. 61 98 N. (Sup. 6 J. Cleveland, N. 316 (1951), N. J. 540 (1949); Greely, 11 N. J. and State v. (1953). as verdicts, the three including
The returns of as follows: Berry, were Jurors, upon prisoner, Ladies Vaszorieh. “The look Clerk: your you gentlemen jury, agreed have verdict? Forelady: The We have. Forelady, you, your forelady? speaks for Madam The Clerk: Who you guilty in the manner and form the defendant Vaszorieh do find charged indictment, not? he as stands Vaszorieh, Forelady: defendant, guilty John Louis The We find the murder, degree no recommendation. of first with may be as rendered the forewoman The Court: The verdict recorded. now, poll you your Honor or after have Mr. Will them Juska: them, heard all? your are individual names called as to the The Court: Yes. As Vaszorieh, you enough your be kind will render own defendant Your has been recorded. verdict? verdict individual right. Forelady: That’s you it. have The Court: And stated Forelady: right. The That’s Very poll. with The Court: well. Continue Gladys Kahle, say you individually how E. The Clerk: as to the defendant Vaszorieh? Forelady: Guilty degree murder, of first with no recommenda-
tions. Hill, you say individually Robert E. how The Clerk: with refer- Vaszorieh? ence to the defendant Guilty degree murder, of first without Juror recommendation. #2: Palm, say you individually respect The Clerk: Axel E. how with to the defendant Vaszorieh? Guilty degree murdex-, Juror of first without recommendation. #3: you McIntyre, say individually The Clerk: Bessie L. lxow reference to the defendant Vaszorieh? Guilty murder, mercy. Juror with no recommendation for #4: say Cottrell, you defendant, The Clerk: Jane P. how as to the Vaszorieh? Guilty degree, Juror of murder the first recom- with no #5: *19 mendation. Martin, say you individually The Clerk: Clarence R. how with respect to the defendant Vaszorieh? Guilty degree Juror murder the first recom- no #6: .with mendations. Marjorie Keilt, say you individually The Clerk: R. how with reference to the defendant Vaszorieh? Guilty, Juror with no recommendation. #7: May Gilmour, say you individually The Clerk: how with reference to the defendant Vaszorieh? Guilty degree, Juror in the first without recommendation. #8: Callahan, say you individually The Clerk: Thomas J. how with reference to-the defendant Vaszorieh? Guilty degree murder, Juror of first no recommendation. #9: George Simpson, say you individually The Clerk: F. how with reference the defendant Vaszoxúeh? Guilty degree murder, Juror of first without recommendation. flO: Greene, say you individxxally The Clerk: Charles D. how with reference to the defendant Vaszorieh? Guilty, Juror no recommendations. #11: Hart, say you individually Clerk: V. The John how with reference to the defendant Vaszorieh? Guilty degree murder, Juror of first with no recommenda- #12: tions. The Court: The verdict that has been rendered each individual juror may be recorded. your The Hearken to Clerk: verdict as the Court has ordered it say you guilty against recorded. You find a unanimous verdict of degree, the defendant Vaszorieh of recommendation, murder the first with no you say and so all. The Court: Proceed. Jurors, prisoner The Clerk: look Brown. Members of jury, speaks you, your forelady? Forelady, for the say you who Madam how your Brown, guilty with reference to verdict as to defendant guilty charged or not in the manner as he stands in the indictment? Forelady: George Eugene The We find the defendant Christian guilty degree murder, first Brown with recommendations of life imprisonment. you jury polled, O’Hagan? wish The Court: Do Mr. your O’Hagan: Yes, please. if Honor Mr. your Very own, You will render individual The Court: well. as to the defendant Brown. verdicts Gladys say you individually Kahle, E. how as to the The Clerk: defendant Brown? Guilty degree murder, Eorelady: first with recommenda- imprisonment. of life tions you Hill, say individually with refer- E. how The Clerk: Robert Brown? to the defendant ence Guilty degree murder, first with recommendation for Juror #2: imprisonment. life individually Palm, say you with reference Axel E. how The Clerk: Brown? to defendant Guilty degree murder, with recommendation for of first Juror #3: imprisonment. life you individually McIntyre, say with L. how The Clerk: Bessie the defendant Brown? reference to Guilty degree murder, with recommendation for of first Juror #4: imprisonment. life Cottrell, say you individually refer- how with Jane P. The Clerk: Brown? ence to defendant Guilty degree murder, with recommendation for of first Juror #5: imprisonment. life say you individually Martin, R. how with Clarence The Clerk: to defendant Brown? reference degree, |6: Guilty recommenda- of murder in the first with Juror tions. you individually Keilt, say Marjorie L. how The Clerk: *20 defendant Brown? reference Guilty, with recommendation. Juror #7: of what? Recommendation The Court: Juror imprisonment. : Life #7 Very The Court: well. May Gilmour, say you individually how with refer- The Clerk: the defendant Brown? ence to imprisonment. individually Guilty, of life Juror with recommendations #8: say Callahan, you The Thomas J. how with Clerk: to defendant Brown? reference imprisonment. Guilty, recommendation of life Juror with #9: say you individually George Simpson, F. how with The Clerk: reference to defendant Brown? Guilty, imprisonment. with for life Juror recommendation #10: say you George Simpson, individually F. how The Clerk: with Greene, say you to defendant Brown—Or Charles D. how reference individually with to defendant Brown? reference Guilty, imprisonment. with recommendations to life Juror #11: say you Hart, individually how The Clerk: John V. with reference Brown? to defendant Guilty murder, with recommendation of Juror life im- #12: prisonment. Very The Court: well. The verdict as rendered the individual may as to the defendant Brown be recorded. your The Clerk: Hearken to verdict as Court has ordered say you guilty against recorded. You find a verdict of unanimous degree defendant Brown' of murder in the first with a recommendation imprisonment, say you for life and so all. may proceed Berry. The Court: You as to the defendant Jurors, prisoner (sic). The Clerk: look Brown Who speaks you, your forelady? you Forelady, say for Madame how as Berry, guilty guilty to defendant or not in the manner and form charged as he stands in the indictment? Forelady: Berry guilty The We find the defendant Robert John degree murder, imprisonment. of first with recommendations to life you jury polled, The Court: Do wish the Mr. McCurrie? Yes, you please. Mr. if McCurrie: your The Court: You will render own individual verdicts as to Berry. the defendant Gladys Kahle, say you individually The Clerk: E. how with refer- Berry? ence to defendant Forelady: Guilty degree murder, of first with recommenda- imprisonment. tions of life Hill, say you individually The Clerk: Robert E. how with refer- Berry? ence to defendant Guilty degree murder, Juror of first with recommendation for #2: imprisonment. life Palm, say you individually The Clerk: Axel E. how with reference Berry? to defendant Guilty degree murder, Juror of first with recommendation of #3: imprisonment. life McIntyre, say you individually The Clerk: Bessie L. how with Berry? reference to defendant Guilty degree murder, Juror of first with recommendations for #4: imprisonment. life Cottrell, say you individually The Clerk: Jane P. how with refer- Berry? ence to defendant Guilty degree murder, Juror of first recommendation for life #5: imprisonment. Martin, say you individually The Clerk: Clarence R. how Berry? reference to defendant Guilty degree murder, Juror of first with recommendations for #6: life. Marjorie Keilt, say you individually The Clerk: L. how with refer- Berry? ence to defendant Guilty degree murder, Juror of first with recommendation for #7: imprisonment. life *21 May Gilmour, say you individually The Clerk: how with reference Berry? to defendant Guilty degree murder, Juror of first with recommendation of #8: imprisonment. life say you individually Callahan, Thomas how with The Clerk: J. Berry? to defendant reference murder, Guilty degree with recommendation of of first Juror #9: imprisonment. life you say individually George Simpson, with F. how The Clerk: Berry? reference to defendant murder, Guilty degree for recommendation of with Juror first #10: imprisonment. life individually say you Greene, with how The Charles D. Clerk: Berry? reference defendant imprisonment. Guilty, of life with recommendations Juror #11: individually Hart, say you with reference how The Clerk: John V. Berry? defendant Guilty murder, for life recommendations with Juror #12: imprisonment. by jurors con- the individual The verdict as rendered The Court: Berry may cerning be recorded as rendered. the defendant your the Court has ordered The Hearken to verdict as Clerk: say you guilty against You find a unanimous verdict recorded. Berry degree, murder in the first recommenda- defendant life, say you all. tion for and so prisoners may be remanded.” Court: The at verdicts as jury’s It should be once observed in all three cases were in com forelady rendered by of R. S. 2:138—2 by with the provisions (superseded pliance and R. N. J. S. 2:138-4 S. 24:113-2) by (superseded N. J. S. under which it is :113-4) imperative ** * their verdict whether it by “shall designate jury in the second murder in the first be degree degree” death sentence shall exacted “unless the jury * * * thereof, and as verdict, its recom- part shall Thus, at hard labor for life.” for mend but imprisonment case, each polled the fact that sentences and of life imprisonment death Yaszorieh upon any not have been for defect in the impugned Brown could jurors returned for the forelady collectively. verdicts as are asserted to be nullities reason solely by The verdicts 4, 7 and 11 in the case, Jurors Vaszorich the failure of 12, inclusive, case, in the 7 to both Brown to specify of Jurors individual “first of the murder” as degree the poll on murder crime of of which each found the degree defendants guilty. respective
125 the as rendered by The correctness of the two verdicts in these cases from forelady question distinguishes Turco, and cases. Greely in the presented Cooper question the effect of a deficient Each those decisions turned upon of in any held was not corrected collective verdict which it was verdict a collective In the Turco and cases Cooper fashion. was held not rendered the foreman by simply “guilty” murder and a sentence of first to warrant a conviction degree cited; and no curative above death, view of statutes from the fact could be drawn inference properly evidence indictment, to the and State’s jury charge either a all were predicated upon of the case theory too, in the murder or an So acquittal. verdict of first degree the foreman rendered by the collective verdict as Greely ease with a recom- the defendant as charged, déelared “guilty We held that that form mendation of life imprisonment.” neither could be cured also was inadequate of verdict recommendation, a feature inference from by arising verdicts, murder of first characteristic exclusively degree used same precisely a in which each juror nor by poll words. defective, such a Here have no occasion to consider how we a cured, may by poll, collective verdict uncertain or cf. Cleveland, Orr, 138 Misc. 322, at v. People v. supra, State v. United 535, 1930), 246 N. Y. 673 Ct. Solar S. (Cty. indeed or States, 2d 538 Ct. C. App. 1952), 86 A. D. (Mun. retirement reconsidera means short of by any jury’s return. The question of a sufficient tion and rendering verdict, as rendered collective is whether an adequate solely vitiated informal foreman, by responses is to be by the poll. the jurors upon some of * * * in a matter of It “is a solemn obligation well- as of the the court as the utmost gravity” murder “'by convicted of first degree that no one be insure evidence,” based upon or a presumption intendment dissent,” or by fails to juryman because a “an inference accused, sentence, time of to ques at the “the failure of the a ver- verdict,” or other than of the sufficiency tion 126
diet “specific,” “direct and positive.” State v. Cooper, supra; Cleveland, State v. supra; Johnson, 5, 46 Ann. La. So. Ct. Sup. In (La. 1894). this must we con- light sider the nature and a purpose of poll jury following correct collective verdict. of the accused on trial to right request poll *23 the jury was 2:190-14 given by R. S. and is now found in Rule It is not in New in 2:7-9(d). as it is some Jersey, states, a matter within the lying discretion of the trial judge. of a is purpose poll primarily to determine whether “there is not unanimous concurrence” jury verdict rendered foreman, as by Rule “The 2:7-9(d). practice of each long standing requires juror to answer for himself, thus individual creating responsibility, eliminating foreman,” any uncertainty as to verdict as announced by Cleveland, v. ate at 322. supra, St In State, Heinze v. 42 128, A. 2d 132 Ct. (Md. App. 1945), it was said: “* * * jury polled juror by when a is each is called name and question by asked the whether the verdict as delivered the foreman verdict, is his in order to make sure that all of the concur in juror the verdict. Each is called on to answer for himself in his language; by juror
own
and while the exact words used
answering
material,
clearly
the clerk
are
the answer
indicates
the assent of the individual mind to the verdict.”
The fact of individual concurrence is the
v.
objective, State
Hulls,
224,
294 Mo.
127 each ing juror who voted for the announced stand, verdict to the court remarking: right “The defendant was entitled as a matter of to know whether juror juror
each
assented to the verdict announced
who under-
* *
jury
poll
jury
took to answer
for the
*. To
means to
by questions
jurors,
individually,
ascertain
addressed to the
whether
juror assented,
assents,
each
and still
to the verdict
tendered to the
court.”
Although
poll
accused,
is the
right
it is not a necessary
of his
ingredient
conviction, but must
be requested by
Rule
timely request,
2:7-9(d),
may
waived
a failure
to make such
Blisak,
State v.
26
request,
N. J. Misc. 197 (Qtr.
Chamberlain,
Sess. 1948); People v.
The assent of each required to the correct ver juror dict rendered the foreman need by formal or literal be style, provided only be unmistakable in meaning. State, State, Heinze v. supra; Margulies v. Thus in supra. 465, State 7 N. Myers, v. J. 484 where the (1951), “Yes,” answered variously, “Yes, sir,” is,” “It to the question the clerk to each put by of them whether murder in the first with a recommendation life degree imprisonment verdict, his held we that “each [juror] indicated expressly that was his verdict. Each juror announced his finding the defendant’s and guilt specified of murder. degree * * * to a of the right poll jury satisfied.” fully Cleveland,
State v. There, here, is not supra, contrary. as the foreman’s met verdict the statutory but requirements; each juror answered merely to the clerk’s “guilty” question “How find.” you do This answer to an incomplete equivocal question case from v. distinguishes State Myers, supra, 128 juror’s that the fell short of the law’s clearly requirement unmis- used, the words
answer whatever poll, assent to takable in indicate his clearly meaning verdict announced the foreman. by under answers
We do not think that the jurors’ each Notably attack here violate this important safeguard. whose answer is “no recommenda juror specified challenged Yaszorich, in the case of or “with recommendation tion” of these life in the case of Brown. Each imprisonment” statements, characteristic, one exclusively as noted above form, murder in the first degree, or the other of a verdict of a collective verdict announced does not in New correct Jersey deficient in if that collective verdict is failing foreman crime, v. Greely, supra, state the degree of states which majority it is held otherwise by although S., 247, Homicide, 41 C. J. have passed upon point. 652; sec. 404; 1041), on Homicide ed. (3d sec. Wharton State, 115 851 Ct. 379, Milton 22 Ala. So. App. (Ala. see 718, Commonwealth, 207 270 W. Ky. Hall v. S. 1928); App. 906, 177 Youell, 5 Hobson v. Va. 1925); Ct. App. (Ky. 1941). 15 E. 2d Ct. (Va. Sup. App. S. however, believe, necessarily sug- the inference
We recommendation, it, sufficiently or lack of may gested verdict, in a correct at least in show individual concurrence said in with other factors. As was Hall v. combination Commonwealth, W., at 9:p. S. death, finding guilty fixing punishment his at “In defendant only punishment could be inflicted in the event found
which jury unerringly murder, guilty indicated the offense of him * * *" guilty it found Hall which indicia of concurrence here not present But there are also Cleveland, In supra. individual in State v. responses in the answer was after each challenged given case Yaszorich *25 had stated their assents in unexception- several other jurors in the only and differed from such other responses terms able murder” in terms. In the “first failure to specify degree answers followed sequence Brown case challenged after the first six had jurors each announced of first “Guilty murder, with degree of life imprisonment”; recommendation the answers again under attack differed in the failure only to “first specify murder” in terms. This degree strongly that the suggests answers each were product, case not of or ambiguity in the of the entire misapprehension minds jury, as in the case, Cleveland rather momentary but of inadvertence to a of form assent to expressing designa- which, tion of the at best, is awkward for' degree laymen state, and such inadvertence for that reason should not be taken to evince or failure fixed any specific lack of intent on such part any as to what the verdict in fact was. Trial well minimize the chance judges might such inadvertent expressions by jurors by polling in the manner used in v. Myers, supra, which requires is,” of each juror “Yes,” “it only simple or response like. And that it was such only momentary inadvertence here is further shown the-fact that each juror.in quéstion, 11, did exception only Juror “first specify degree murder” in terms in assent his verdicts in one stating or another the three cases. or
Denial Yaszorich’s Motion roe a New Trial The motion was based upon discovered evi- newly alleged dence, a namely, sworn statement of who did Berry, appeal, which was within month after his given confine- ment to State Prison under his life sentence. He states that it was he and not Yaszorich who wielded the steel worker’s wrench; hand; had Yaszorich a small bar his only time; that both first struck at about the same Delhagen awoke, that when threw Delhagen Yaszorich him to the floor and held him down him while “hit two three Berry more wrench; times” with the that Yaszorich then tied Delhagen with the Christmas tree left light Berry to watch strings him steal; while he searched house for things the victim “was still lot of noise so I hit making quite him head”; about six or seven more times on the he assisted *26 130 “I hit where into the kitchen
Vaszorich to drag Delhagen wrench.” the steel worker’s him one more time” “still with I can’t “I statement because states, only He am this making swore have done.” Brown also see die for I John something from observa- to a statement which disclaimed any knowledge he saw with the bar Berry tion that had struck Delhagen he hit told him had hands, had Berry his but affirmed the kitchen. he was into after Delhagen dragged court’s discretion It is settled that the trial newly a of alleged new trial deny upon ground grant criteria, namely, three discovered evidence is to be guided by the issue and must be material to that “the new evidence (1) nor contradictory; not cumulative nor merely impeaching since the former trial that it has in fact been discovered (2) trial before such and could not have been discovered due that it would probably change exercise of (3) diligence; Bunk, 4 N. a v. J. result if trial was State granted,” new Hunter, N. J. 531 482, 486 v. 4 Super. (App. (1950); where, here, the new addition, alleged In as Div. 1949). unreliable testimony, is a particularly evidence recanting true, perjury, if involves a confession of form of and proof, trial erred whether the judge we approach question a new trial mindful of deny his discretion to exercising Mr. in his concurring Justice Cardozo principle phrased Shilitano, 161, 112 218 N. Y. N. E. People opinion 733 Y. F, 1044 Ct. : App. 1916) 739 L. R. A. (N. * “* * trial, justify a new he must have I do not mean that convinced—firmly certainty sense of convinced—that been or with a story story of the was and that their new the first witnesses false probability. if, might upon on He act a reasonable But was true. false, contrary, was he was convinced that the second tale league naught at the verdict of criminal had been formed to set court, clearly jury duty judgment marked. his * * * liberty upon at the shoulders of another He not shift responsibility. have own That would been to make his triumph. conspiracy charged responsibility He was to seek the truth himself.” his upon Here the trial decision grounded judge not conclusion that at least element criteria was (2) met, so, plainly is for (and Berry’s testi- recanting if. true, is mony Vaszorich knew at all times that Berry he wrench, wielded the steel worker’s and the evidence was thus not at discovered newly all), also his dis- *27 belief of the recanting testimony, stating: amazing regrettable young “It at is but the same time a man that by age years Berry o£ the of seventeen the name of so should have completely compare and so soon in lost life his soul. I When by Berry testimony statements now made with his sworn under oath imposition and his statement to the Court when of sentence was given, any say I cannot come to conclusion other to than it is unbelievable, telling and I do not believe it. If he is now truth affidavit, guilty perjury.” in his ishe We have uo difficulty whatever in the conclusion reaching that the Vaszorich argument by Giordano did not Judge properly exercise his discretion is without wholly substance. had Berry to nothing by lose he was recanting; content with having escaped the death penalty and did not appeal. His life forfeit, not be, nor could it being he plainly perjured himself, from some twisted obviously sense of to his loyalty in companion depravity.
The on are affirmed. judgments appeal vicious, J. The was (dissenting). killing AVachenfeld, cruel and and the details need not be recited bloody, gruesome further than that death say was result an assault and under the statute was murder in the first robbery degree.
But the trial constitutional fair are guarantees accused, impaired by abundance of evidence against nor is the law be altered or the trial or errors condoned in excused because evident if resulted in guilt, they fact manifest and injury. wrong
I in am accord as two majority opinion except verdict, I think there error in the return of the points. which was a for failure to with the statute nullity comply were of murder of which the defendants degree reciting
(cid:127)convicted, “blue book” and in the distribution of so-called set with the forth therein. legend three in Yaszorich It is not disputed verdict, their (cid:127)case, asked to declare when polled, upon being recommendation,” with- “Guilty, with no merely responded: the- of murder as required out specifying degree Brown, six when jurors, polled, replied: statute. As to n “Guilty, life with a recommendation of imprisonment.” manner such to the way as statutory requirement N. 2A returned is found in J. :113-2: verdict must be S. designate by person jury finding guilty their murder shall “A degree in it be first the second verdict whether murder n degree.” 2 N. J. said court, This Cooper, (1949), State v. command,” “a solemn obliga its it was “imperative * ** “the gravity,” in a matter of the utmost tion *28 that in an issue deemed it essential resolving Legislature or the imprisonment finding the death life involving penalty conjecture.” and not left to specific he the Cleveland, 6 N. J. 316 unanimous In v. (1951), State court repeated: question more than a technical violation of a statute involves “The * * * finding specific procedure. be in The must rule of
or statutory mandate.” exact accord with was used four months in The same language ago forceful 485 : v. N. J. Greedy, (1953) State duty jury compliance a verdict with the “It is of find degree statutory murder mandate and the which defendant prerequisite.” guilty specific is a is “it concedes under the statute opinion The majority * * * jury ‘shall imperative is designate it be murder in the first degree their whether or verdict ” It admits on the poll jurors the second degree.’ murder, with but degree seeming failed specify then the failure inconsistency sustains verdict because of murder was due to- jurors specify degree “momentary inadvertence” and their conduct did not evince- lack “fixed a intent” and concludes that “the inference * * * necessarily by the recommendation may suggested show individual a sufficiently concurrence in correct verdict words, In other inferences can be drawn as to what the meant or intended and their failure with» to comply the statute is to excused be because of inad- “momentary vertence.” the; Cleveland,
In however, we supra, said just opposite: finding a “Such determination cannot be left to inference. specific statutory
must be and in exact accord with the mandate.” then to dispel any And as doubt to this rule’s im application poll of we jury, said: clearly “We think the law demands that in a when murder juror, polled, guilty, case is each if he finds the defendant shall designate by degree his verdict whether it be murder in the first degree. in the second consideration, This was not done in the case under and we think it. prejudicial constituted and therefore reversible error.” It law, was not new for in State v. Cooper, we said supra, death, is “essential that in an issue resolving involving life penalty'or imprisonment finding specific left to conjecture.”
Then, to make sure,” “assurance doubly State v. Greely, we said supra, compliance the statutory mandate as to- *29 of murder degree was “specific prerequisite.” To me the factual situation here is identical. The Consti- same; is the tution the statute still remains in full force and< effect on our The books. only difference is that Cleveland,. and the have been Cooper others disposed of and Yaszorich- and Brown are at the bar of answering justice. The rule as- different; them is to has been and changed Yaszorich’s death is applied decreed with little to the standards thought us to under same others circumstances. life tribunal, take without low,
No or has right high man- strict with the and constitutional compliance legislative such of sub- it, dates nor is the judicial reasoning permitting substitute stance, be an or as to quality stability adequate for enacted provisions. law
The faith in of the criminal comforting equality under the and its administration well totter may impartial here bewilder- My distinction made. impact attempted ment the inconsistent treat- inability lies in to reconcile my the same ment and results arrived at under law.
Also, was distributed to entire of panel prospec- there book” of 28 entitled jurors pages, tive a so-called “blue Jurors,” this state- Instructions containing “Primary with Which Should ment : and Juror Principles Every “Facts face in Make Himself Familiar.” It had on its printed large letters, of the Sheriff.” This advertisement “Compliments many disputed by majority had errors admittedly an definition reasonable doubt including improper opinion, to what was the trial ultimately quite contrary charged was the jurors without authority The booklet judge. given had it in their for four court, they possession any of this days. five mis- concluding page catalogue devoted to this exclusively “facts leading principles” admonition, and impressively displayed: prominently crime; miscarriage in a “On head of criminal lies but justice jurors guilt.” delinquent participants become Lyeurgus tells us that the author’s existed
History Spartan leadership in the Ninth c. His for Century qualifications instructing b. and in this jurisdiction our in this are absent from age the record.
On oral honestly freely ad- argument prosecutor mitted law this was not and he did not even good quotation it. undertake to defend That left to us as another if we would sustain below. judicial chore judgment *30 the this coined consti- Realistically, phrase trampled upon their tutional of the defendants and annihilated privileges them the of innocence by presumption rights denying the case beyond its prosecution prove requirement It these fundamental prin- a reasonable doubt. two replaced law, foundation our criminal very of constituting ciples, verdict of that unless there was a guilty, with a threat their think- did own independence, who asserted their jurors law themselves and followed the would be guilty ing, crime. of the prisoners A trespass upon primary rights greater “ ‘A in
is difficult to conceive. We have said: humbly thing its carries, with the layman, writing particularly weight ” own,’ the oral and such an incident “shears balance of have in the case of the it would otherwise testimony weight Cleveland, and is supra. erroneous.” State v. trial by
The of the situation was recognized gravity booklets, it said when, they “might court referring who know laymen nothing when in hands of misleading taken that the books be about the law” and therefore ordered said However, this action and what was from the jurors. ineffective a cure for an error the court were as by obviously defiant of our of essential concept and glaringly so prejudicial and fundamental justice. instructions
The occasioned the written erroneous by harm fate determine the were to Which by as guide them defendants, by absorbed impressed days, document for possession erring having physical “A in car- overcome that easily. thing writing not be could its own,” imprint its and a nullification of ries a weight is difficult of accomplish- under the admitted circumstances ment. in a the method of a verdict first solemnity taking has case as statute been required by murder
degree Turco, 98 N. J. L. 61 (Sup. for 35 years, existence court on three and has been confirmed this Ct. 1922), within the last few years strong occasions different difference sees a yet majority unequivocal language; I discern. the case sub which am unable to judice *31 made, law, In if a is to be effect, it changes change at we should least recognize right Legislature make it instead its Here sub- of usurping prerogative. we now refuse enforce a directive which stance legislative we have and termed a “solemn already upheld obligation,” command,” in its of the “utmost “imperative gravity,” its in 1917. which the courts have enactment supported since we not mean what we said a few months do Apparently ago, In no matter how we it. emphatically plainly expressed that, seems, our mind and fact, we have just changed sufficient, should be but Vaszorich is to have going difficulty it. understanding is to the standards contrary
His treatment heretofore and accorded to others. I if unanimously doubt agreed upon due lack of my experience is criminal my difficulty Nevertheless, involved, matters. issues my analysis authorities, me to conclude that compels pronounced issued, here, the death warrant when must be classified as rather than “legal.” “expedient” both I would reverse as to defendants. Burling and Mr. Justice
Mr. Justice concur Heher this dissent. For Justice and Justices Vanderbilt, affirmance—Chief Brennan—4.
Oliphant, Jacobs and Burling
For reversal—Justices Heher, Wachenebld —3.