*1 PLAINTIFF-RESPONDENT, JERSEY, THE STATE OF NEW DEFENDANT-APPELLANT, WHITE, AND LE ROY TOURSE, DEFENDANT. ROBERT May 26, Argued 17, 1958 1958. March Decided *3 Mr. F. Frvan Kushner the cause argued for defendant- appellant (Messrs. Frvan F. Adlman, Kushner and Sidney Kushner, Mr. Frvan F. attorneys; of counsel).
Mr. Archibald Kreiger, Deputy Attorney-General, argued the cause for Joelson, plaintiff-respondent Charles S. {Mr. Deputy Attorney-General, Acting Passaic County Prosecutor, Mr. attorney; Archibald Kreiger, of counsel). opinion court was delivered by *4 C. J. Robert Tourse and Le White Roy were
Weiftbaub, convicted of murder the first Tourse degree. was sen- tenced life jury’s recommendation and does not There appeal. was no recommendation for White, and he appeals from the judgment imposing death penalty.
The homicide occurred in the course of a on robbery 24, 1957. July White freely admitted his role in the killing. He and Tourse planned the holdup. Tourse remained in revolver, entered White, armed with while
his automobile According Klein. Joseph store of grocery the neighborhood and to subdue resisted, Klein, White, Mr. age victim, injuries, However, him with his fist. he struck medical such that skull, were fracture of including head blunt “blows to inferred there were examiner attack. of the day Klein died on the Mr. instrument.” I. insanity. the defense of White offered that White a finding well warrant The evidence would heroin, According daily injections. was addicted to taking after hours, for nine to ten White, the was effective drug The thesis withdrawal. symptoms which he experienced and executed was conceived the defense was that holdup the imperative heroin to satisfy funds to purchase to acquire and in such withdrawal stage demand for 'the bodily drug hence defendant should be acquitted. testified for and psychiatry
Two specialists neurology described the withdrawal Dr. Robert Garber defendant. S. advanced addiction to heroin. During typical symptoms Garber, to Dr. “physical according stage, desperation increase to the point emotional symptoms” is not to reason “ability things through so that addict’s he is ill as and hence logical” “quite mentally nearly true, “is labor under they emotionally.” probably and the because of the physical a defect of reasoning that he is less “My feeling emotional symptoms,” act he is He know the quality doing. able” to “is insane in however, that reference to White agreed, rule”; that he could from the WNaghtm distinguish right “made him emotionally the withdrawal experience but wrong, he his ability couldn’t but color help ill to a degree that “I think he was able to this.” He added form do because he was robbery, principally intent to commit desperate enough.”
Dr. Garber testified that a addiction over drug period years cause “a certain amount of mental deteriora- tion.” He did not that had here occurred. Nor suggest any was there that White was “insane” in sense testimony any of the as time of trial. Dr. Garber said that when drug is “there’s administered immediate relief of the symptoms and within a short of time returns his period normal [he] arrest, behavior.” that his appeared White following was given four or five times a phenobarbital day a of three period weeks because of his addiction.
Dr. James B. for the testified Spradley, defense, essentially same effect. said He that without the an addict drug such as White “was not able to function properly.” Although the withdrawal a “creates and very distressing disturbing * ** state of mind it does not distort orientation. He still where he knows is and what he is His doing. memory affected,” is not “I too but don’t think badly that any mental are higher processes evidenced to the same degree in the absence of the drug. Thinking, reasoning, judgment, activities; restraint of all of those functions of brain are minimal” and “distorted.” the addict knows Although he what is “the demand for the doing, so he drug great cannot exercise and restraint judgment on his behavior to the same normal degree person could.” He agreed that White “knew the difference between and right wrong,” knew that what he did was wrong violation law, and was able form the rob, intent but “These are no free need people of the longer agents. drug controls them.”
We add that White’s testimony, descriptive of although withdrawal painful symptoms, reveals clear apprecia- tion and recollection of crime. He recounted the planning perpetration robbery attack detail.
Upon this record the trial court charged voluntary use of narcotics will not a crime; excuse justify if use such results in a mental disease, the disease will receive the same as recognition out insanity other arising cause; and that where as here the claim is temporary *6 under laboring “the was accused issue is whether
insanity, the and quality nature as not to know a defect of reason it, he know if did he or committing, was of act Thus was wrong.” was did what he doing he not know test applied M’Naghten in terms of the issue went to the jury, mental derangement. a temporary whether question the restless Defendant urges of the defense approach rule is correct M’Naghien the question. this presents see how case We fail to insanity. some all require tests We this because the say competing in the and none appears of mental disease defect form record before us. mental disease of
That M’Naghten requires
showing
that criminal
statement of its concept,
is evident from the
of
of the committing
unless “at the time
exists
culpability
under such a defect
act,
was laboring
accused
party
mind, as
to know the
from disease
of
reason,
or, if he did
he was
nature and
of the act
doing,
quality
he
what was
did not know that
was
it,
doing
know
he
State,
L.
497
&
495,
59 N. J.
A.
Mackin v.
(E.
wrong.”
1896).
(or perhaps
The irresistible
addendum
impulse
likewise demands
proof
interpretation of) M’Naghien
disease,
Disorder as a
Weihofen,
mental
Mental
Criminal
91;
Burdick,
1
Law
Crime
(1954), p.
(1946),
Defense
Annotations,
284;
70 A.
R.
see
L.
659
passim,
p.
§
173
L.
391
(1948),
A.
R.
distinction
(1931)
being
and an impulse
drawn
an irresistible
impulse
between
not resisted. And so
does the Dew
was
also
just
Hampshire
prominence
into
Durham v.
rule,
recently catapulted
by
States,
D.
2d 862,
U. S.
C.
F.
App.
United
in 45 A. L. R. 2d
1954),
C. Cir.
annotated
1447 (1956),
(D.
lead to an
when the
which would
“unlawful act
acquittal
mental disease
or mental defect.”
product
the terms mental disease and mental defect in
Although
the irresistible
and Durham tests
impulse
themselves call
definition,
for
we see no
view of them
expansive
which would
embrace this case. Defendant’s
do not find
psychiatrists
mental
illness because of or
any
independent
the use
were
in which
best,
drugs
have a case
At
we
of drugs.
had free
which defendant again
taken and in
voluntarily
disease
of impairment by
the sense of the absence
choice (in
treatment
himself in for
to turn
or disorder of
mind)
be
of the taking
drugs
all times when
virtue
by
at
use
psychiatrist’s
to “normal” (to
havior was restored
any authority
to find
Defense counsel were unable
term).
during
demand
drugs
would equate
bodily
which
Nor
which excuses.
an insane compulsion
withdrawal
Commonwealth,
Prather v.
found
unless it be
have we
which dealt
1926),
like the use of voluntary therefrom), of mental disease resulting the absence (in with respect in situations it bemay pertinent some although of that the existence of crime degree by negating to Wharton, Law and kill. Criminal intent to 1 specific 99-116; 44r-49, Weihofen, pp. Procedure ed. 1957), (12Ih §§ is thus intoxication 124^-29. supra, pp. Although voluntary crime, yet authority said not to be an excuse for substantial lead an when it it to acquittal view supports the reason that intent excludes a required specific the crime the defendant did not commit such circumstances Wharton, 44, 179; 1 Weihofen, supra, p. supra, charged. § State, 686, 690 & A. 102; (E. v. 56 N. J. L. see Warner p. 1894). hold that intoxication is no defense voluntary
Our cases murder, where the thesis is that to but State’s killiug deliberate and intoxication which willful, was premeditated, the faculties as to the formation of prevent so prostrates kill, will hold the crime murder in intent to specific Wolak, 464, v. 26 N. J. 477 the second State (1958); degree. Tansimore, 516, 3 J. 528 v. v. State (1950); State N. 1929); 106 N. J. L. 352 & A. 344, State Treficanto, (E. 77 L. 549 & 544, 1909); v. N. J. A. Wilson Mangano, (E. 166 State, Warner v. 171, 60 184 & A. 1897);
v. N. J. (E. L. State, The same rule was 56 N. J. L. at 689. supra, page the influence of narcotics in State with applied respect Close, L. A. 1930). v. 106 N. J. 321 &(E. Roach, 488, 490 & A. 1938),
In v. J. L. (E. State N. held murder “In the absence respect felony the state of mind of interposition plea insanity the defendant in issue. Intoxication in such case was not crime from first to is not a defense and cannot reduce the Burrell, In second Two State v. degree.” judges disagreed. 120 N. L. 277 A. also 1938), felony J. &(E. involving first murder, trial court charged degree acquittal. that a murder was Defendant lesser complained degree That have left as an alternative. failure seems to been And as that there inferentially. instruction approved if be an intoxication formation of an acquittal precluded intent said to rob or court N. J. at burglarize, (120 L. page 285): was, anything, In “This if too favorable to the defendants. State Marriner, 265, N. J. L. N. L. it was affirmed 95 intoxication, produced by specifically held ‘mental unsoundness pronounced prostration as to exhibit an entire even where it is so defendant, against is no defense a criminal the faculties ” charge.’ Tune, hand, 17 N. J.
On other State v. (1954), 584, 99 L. Ed. denied, certiorari Ct. U. S. S. *8 trial case, also a murder the felony judge (1955), could be at defendant’s intoxication request charged the issue intent to and if that intent considered on rob than should not be found the verdict could not be more murder That instruction was in the second degree. approved which did not the issue here dis objections as against flag cussed. Ho reference was made to Roach or Burrell.
Here the trial court directed to consider the jury evidence offered as to in whether there insanity determining existed the intent to rob and directed an specific acquittal if that intent was not found. This seems to have comported trial with defendant’s to Thus the court request charge. to consider on the permitted jury temporary insanity basis of use of he did so on drugs. voluntary Presumably 130 N. J. L. 253 A. Lynch, State & strength (E. There the was “a total amnesia” as to which 1943). plea evidence was offered that for two or three defendant years “had suffered from chronic bromide and that this poisoning, condition became acute to as a result of prior shooting of a of bromides.” N. L. taking large quantity (130 at It page 255). was held to be error in those circumstances to insanity which law must charge recognizes be a fixed and continuous condition. involved a Lynch charge of willful, deliberate and premeditated not a killing, murder. felony
The whether defendant was entitled question here on the issue of charge given insanity was not raised and hence we no view. is argued express enough that from the say cases, review of our however foregoing discordant seem, defendant cannot they may surely complain, in the especially of his that he light testimony knowingly and committed the planned and the holdup opinion defense that he did formulate intent psychiatrists to rob. What defendant wanted an instruction in terms of the and, Durham rule as said, we have event proofs would not come within that doctrine.
Of course, a different very whether addic- question drug tion be considered respect punish- ment. Whether a defendant should live or die does not depend upon legal principles Rather concerning guilt. calls for moral judgment which mental illness or aberra- tions, rejected by defense, as a may nonetheless Here the heavily. evidence was in weigh fact admitted and was not removed from the jury’s consideration of whether recommend life imprisonment.
II. of Tourse led questioning to White and he was appre- hended. White was interrogated by member of the staff *9 to handle assigned the Deputy Attorney-General was taken A confession county. of the
criminal business White declined to sign under oath. stenographically the advice of he obtain statement until could transcribed to be contents counsel, he orally acknowledged although was admitted The confession true. It was never signed. consider. we shall now objections into evidence over vitiated the confession was Defendant urges The issue seems not an was administered. fact that oath Elsewhere some arisen heretofore in this State. to have defendant’s position. They ap authorities early support of the rule corollary found the exclusion to be parently witness, a competent then that a defendant was not prevailing the oath rendered rather than to rest basis view is involuntary. general today confession administration is admissible confession notwithstanding Underhill, Evidence ed. 1956), of an oath. 2> Criminal (5th Wharton, 396, 1012; 2 Criminal Evidence ed. (12th p. § Jur., Evidence, 450; 364, 77; 20 1955), p. 527, p. Am. § § 832, 22 C. J. Criminal Law 1455. p. S. § An confession is one involuntary thing, compelling another, a man himself testify Wigmore, against 387, (3d 1940), Evidence ed. both p. although § in some eases. The usual basis for converge invalidating confession induced improperly is its untrustworthiness. viewed, 246. Thus Wigmore, supra, p. com- § truth of an oath to tell the comes within the pulsion hardly reason for the confessional rule. We turn therefore to the other whether the phase inquiry, privilege against self-incrimination was violated. 2A
N. J. 8. :81-8 that “On the trial an provides indictment, the defendant shall be admitted to if testify, he :81—5, offers himself as a witness.” N. 2A8. provides that “No witness shall be to answer compelled any question will him if answer to a criminal expose prosecution or or to a forfeiture of his estate.” also N. J. penalty See 8. 2A The common law rule :81-6. self-incrimination against State, is not embodied in the Constitution our but the *10 is no less State urgent protective. statutory safeguard v. 19 N. J. 431 Fary, (1955). be that neither of the statutes is may quoted ap the reason that was not in a for
plicable interrogation within their 8 Wigmore, supra, proceeding meaning. § Newark, 320; Education J. Laba v. Board N. p. cf. in the course 364, 390 occurred interrogation (1957). fair of a But police principle play investigation. from which these statutes must beyond emerged range courtroom; could be nullified. If otherwise privilege simulated a judicial proceeding enforcement officials a defendant he must persuaded some testify upon penalty an refusal, invasion of of the individual rights well be found. might however,
Such, is not the case us. Defendant before did not he believed he was to answer suggest compelled under lawful pain of or unlawful. The state punishment, ment itself would such claim if it plainly dispose any were made. After name, as to defendant’s full inquiries address, nickname, whether defendant remembered the events 24 and the hour at which he arose July on that day, statement- reads: you point: you willing give Let me ask at this “Q. Are me a voluntary completely regarding Wednesday, statement the events of July 24, 1957? A. Yes. you doing any promises my part Are so Q. without threats or on part anyone? right. or on the A. That’s anyone words, you? InQ. other have I or has threatened A. No. anyone promised you anything Q. Have I or has for this state-
ment? A. No.” circumstances, In these there is no basis for conten- tion that the confession was involuntary procured violation of of defendant. any right 41:2-3.1,
We add that B. S. which authorizes county detectives and of the office to ad investigators prosecutor’s minister oaths relation to matters a violation involving or an violation of the attempted State, criminal laws of this does not empower prosecutor to compel testimony. State Eisenstein, 1951), Div. Super. (App. N.
affirmed, N. J. 347 (195'2i). Defendant also of a complains absence warning that he was free he not to that what said speak might be used him. 3:2-3, He relies R. R. which against deals with before a proceedings magistrate upon preliminary and provides in hearing subparagraph (b) magis * * * trate “shall inform the defendant of his right make a statement not under oath as to the charge against him, that he is not to make such a required statement and statement made him be used him.” against *11 The rule governs before a proceedings was magistrate-. not designed to the conduct of executive regulate officers, nor to prescribe by rule implication any of evidence applicable Randazzio, to confessions them. to See given 194 People N. Y. 87 N. E. 147, A failure (Ct. App. 1909). to warn is Wise, se a per bar to admissibility. State v. Pierce, 19 N. J. 99 (1955); State v. J.N. State v. (1950); Fary, supra, N. at 435. page cf. We note that defendant must have been impressed to refuse to a statement right give virtue by inquiry made as to his one, and it seems willingness give unlikely obvious, wit, that he was unaware that a confession of murder would be usable him. against
III. The jury interrupted its deliberation to inquire: question brought up degree “The the event first imprisonment, any possibility good is life is there of time off for behavior, or is it a fixed life sentence.” The trial judge replied: “Well, question, jury, merely on that members of the I want you quoting
advise as I am follows. from the statute law of New Jersey. Under the statute there is created and established within Department Agencies Board, of Institutions a State Parole provides duty and also under the statute it it shall be the subject conditions, board to determine when and under what provisions persons act, serving to the this now or hereafter having serving minimum sentences fixed and maximum terms or life, penal for sentences in the several and correctional institutions upon parole. of this State be released provides: The statute further existing ‘When the board has been all furnished available records prisoner pertaining parole to the it shall merits of his consider investigation necessary and shall make such other as shall it deem proper.’ provides, prob- And then the further statute and I think this is ably you concerned, your the one with which are most from question, ‘Any prisoner serving eligible a sentence of life shall be for con- years parole having twenty-five sideration for release on after served sentence, good of his less commutation time behavior and time diligent application credits earned and allowed reason of to work ” assignments.’ Defendant “that objected not within the province court to instruct as to what happen might in life.” The issue is whether the trial court dealt properly with the jury’s inquiry. Roscus,
In State v. 16 N. J. 415 the trial court (1954), received a like and made the same inquiry virtually reply. There defense counsel and for that reason expressed approval the court concluded N. J. at (16 page 439) “objection was not raised as under charge properly required *12 R. R. 3:7-7 it did add “in (5),” but that addition such Molnar, instruction 337, v. 133 N. J. L. proper, State 336 A. noted, however, & that (E. 1945).” should be in Roscus the whether the was an question charge adequate statement of the of the statute was not provisions parole raised and the whether the should argued, question consider at all was not with the subject presented full historical and with the references to background practice elsewhere which are discussed hereinafter.
It should be stated the trial frankly handled judge the situation in accordance with prior However, decisions. re-appraisal of we cannot problem, escape conclusion that the course heretofore is erroneous. approved
172 was in- out that correctly points charge
Defendant made to the event. No reference was complete Act, N. J. A. 30:4r-123.14: of the 1948 Parole S. provision merely prisoner parole on “No shall be released as reward performance good assigned conduct or efficient of duties while under only sentence, opinion but if the board is of there is released, probability prisoner that, will if such he reasonable rightful place society, proper without violation assume law, incompatible and that his release is not with the welfare society.” Nor did the disclose that returned charge parolee may to prison for violation of parole. we
But
to deal with the basic
whether a
prefer
question
consider the matter at
may
all.
holding
may has evoked
dissent in this
and has little
State
strong
support elsewhere. The authorities
heavily
preponderate
Annotation,
the other
L. R.
769
way. See
35 A.
2d
(1954),
State,
later
decisions not there
v.
Lawley
considered.
283,
264 Ala.
87
2d 433
So.
Ct.
v.
(Sup.
1956); Scarber
State,
503,
226 Ark.
291 W. 2d 241
Ct. 1956);
S.
(Sup.
State,
259,
McGruder v.
213 Ga.
98
E. 2d 564
Ct.
(Sup.
S.
State,
282,
v.
235 Ind.
Erequently punishment trial. In counsel for fact, despite plea insanity, *13 defendant devoted his realistically summation to the subject of punishment. Our decisions prior contrary to the being trend, we should not hesitate general to consider again we whether are will. executing legislative Prior was not jury concerned with the sentence In for murder. that year chapter was enacted. provided: “Every person degree, aiders, convicted of murder in the first
abettors, procurers, counsellors shall suffer death unless jury rendering at the time of verdict such case shall recom- life, mend hard at labor for in which case this and no * * *” greater punishment imposed. shall be Governor Eielder had bill, vetoed the saying: my approval “I feel constrained to withhold because I do not you chapter believe have taken into consideration 214 of the laws of provides anyone which sentenced for the term of his years, may natural life and who has served fifteen be released on parole by Inspectors. the Board of Prison If a man is convicted degree, opinion of murder in the first but in the he life, executed, should be sentenced hard labor rather than be possibility shortening sentence, except there should be no the life through power the Constitutional of the Court of Pardons.” overrode the veto. Legislature The statute was a compromise on issue whether capital punishment should be abolished. It was foreshadowed by to the Senate in 1908 report of the Committee to Inquire into the Subject Punishment, of Capital which concluded with a recommendation the line the 1916 act. along Rombolo,
In State v. 89 N. J. L. & A. (E. 1916), informed, to its response that a inquiry, defendant convicted with a recommendation could be The Court pardoned. affirmed, of Errors Appeals saying one of the elements to he considered “Naturally by whether, them in determining punishment if they shall their verdict life by impose imprisonment, can be and set at court of disregarded naught pardons” Martin, N. J. L. at In page 570). State 92 N. L. (89 *14 174 was question in which the immediate A. 1919),
436 &(E. issue, 6 the divided to on broader involved, the court not dealing the evidence in beyond the whether go the recommendation majority thought the sentence. The not a the upon the verdict and was finding of part was not in the jury’s consideration any and could rest evidence, upon however, “the court had reversed, because They discretion. effect of the evidence as to the instruct the jury to no power recommendation, and no one reading the of upon question the purpose the conclusion can escape this charge recom influence the jury against court was to the trial of the enormity for life because imprisonment mending N. J. L. at it to the jury.” (92 he pictured the crime as 443). page decided, was No. Assembly after Martin days
Eight The the 1916 statute. changes amend introduced to substitute for revealed the committee are accomplished reads: which the bill aiders, degree, “Every person in the first of murder convicted procurers,
abettors, shall suffer death unless and counsellors by rendering shall case] verdict in such [at the time thereof, upon verdict, part consideration and as their and after life, evidence, hard labor at recommend all punishment imposed; greater shall be no and in which case this » * % * here in the printed thereto was Statement Appended and now as appears was adopted The measure margin.1 2A: 113-4. N. J. 8. 1Statement object meet this situation. bill is to of this “The page ease, 434, the .[at] A. Court [Rombolo] In Rambola says: 1916, page 576, discussing Appeals this act of
Errors however, legislation, ‘By an additional burden is of this force adjudge they jurors defendant to be shall put in case determine, degree, within guilty and that of the first of murder punishment statute, by what his shall be. limits fixed by in deter- Naturally, to be considered them elements of the one verdict, they is, whether, punishment shall their mining if naught by disregarded and set at impose imprisonment, be it can of Pardons.’ Court effect of the amendment was to make the (1) recommendation part verdict require (2) recommendation to made after “upon consideration all the In evidence.” forth the “situation” which setting meet, the bill was quoted Statement designed very of Rombolo with which we are here portion Thus concerned. there is evidence of strong to exclude legislative purpose consideration of the or parole evidence pardoning power, which have been noted in appears expressly *15 decision. subsequent v. 93 N. J. L. 268 Carrigan,
In State Ct. (Sup. 1919), tried the which was before 1919 it amendment, was held on of Rombolo the that the trial strength judge properly charged on its own initiative that consideration could be to given the Court of Pardons as power the of and well to the statute after 15 parole authorizing years’ imprisonment. The Court to 4. 94 N. L. and affirmed 7 J. of Errors Appeals (1920). case, etc., 3, 1919, In the Martin March the Court of Errors and construing
Appeals, says: in this same of statute part verdict, ‘The does not it a statute make for the question guilt determines the of verdict the or of innocence the accused, and that must be arrived at and be a verdict of murder degree question arises, of the first before the of recommendation matter, jury may agree which is a for the distinct on a verdict that guilty degree, defendant is of of the murder the first but not be able to'agree jury may ato recommendation. While a be influenced to punishment by very life recommend as the matters guilt accused, properly SO)still, of which evidenced the the in law, jury the are not bound to consider such evidence to deter- mine to make or whether refuse recommendation.’ case, In the [Rombolo] Rambola the of Court Errors said: they shall, by verdict, impose imprisonment,’ seeming ‘If their life thereby part to hold that the recommendation was a of the verdict. distinctly case, In the Martin it is held that the recommendation part not a of the verdict. that, case, language In the Martin the Court holds under the of jury the Act the are not bound to consider the evidence determining in or whether make refuse a recommendation. The purpose of this is to make clear in it that the recommendation is a part verdict, determining the that whether or not the made, recommendation shall the shall consider all the evi- dence in case.” the A. case, 94 N. L. 139 &(E. Martin In the second amendment, trial after the was tried which 1920), The respect pardoning power. charged judge N. : affirmed, J. L. at page 143) but said (94 court appellate say unfortunate, but we cannot this remark was think “We beyond right legal error, judge or went committed that say prisoner. harm to the Nor was done can we comment. suppose judge quite unnecessary, since were we The remarks every juryman existence of court must know might change pardons, their the result of verdict and that mercy grace.” exercising J. L. 145 A. (E. & 1920), v. N. Schilling, In State the court Rombolo sustained, stating a like instruction was 1919 amend law continued to be notwithstanding good harmful was “not charge ment adding case, as it was defendant, when, nor in this law, error N. J. L. (95 return.” might verdict applied J. L. 94 & A. N. 154). Mosley, (E. at In page State noted majority there was a similar 1925), charge. case that the remark observation the second Martin dissented. harmful. Two unfortunate but not Six judges issue and in dissents were filed. One dealt with present *16 had the 1919 amendment eliminated concluded that part L. 117). N. at (102 page Rombolo. J. Barth, A. and 114 N. J. L. 112 &(E. 1935),
In v. State Dworecki, & A. the 124 N. J. L. (E. 1940), v. State Leaks, In v. sustained unanimously. was State charge A. the was majority opinion & 1941), N. J. L. (E. members the court dis but four question, silent on this have volunteered that the trial should not sented, court saying and “The has whatever jury the subject nothing on charge the or person may appeal may with whether convicted to do N. J. L. at (126 page 119). courts.” clemency other seek Molnar, N. L. 327 & A. the 1945), (E. In State like the response given sustained majority charge dissented other judges Pour on grounds. jury’s question. how what once declared to be reveals The foregoing but not incorrect “unnecessary” legally “unfortunate” and “harmless” became a fixed course. We the agree charge is “unfortunate.” Eor reasons to be we stated, sub- cannot the scribe to view it is a proper And charge. assuming it to be we improper, cannot is agree harmless, error for if a doubtful as whether jury, should death penalty be or satisfied that it should be life should imprisonment, with- hold a recommendation because the death sentence may commuted or because another may agency on grant parole a life it sentence, is difficult to comprehend how can be maintained that there is no harm to a defendant.
The whether a question sentence shall be immutable involves deep policy considerations. The Constitution of 1947 itself answers the question. provides It Governor may in all grant pardons cases other reprieves than V, and treason. Art. impeachment II, Sec. 1. par. It directs that a for the system parole shall be granting provided by V, law. 2. II, Art. Sec. par. Evaluating elements justice individual, to the the interest of society in the men redemption of and as im- well impact prisonment without hope upon operation penal institu- tions, the of an Legislature rejected unalterable concept for life and sentence prescribed terms conditions which a upon prisoner so sentenced be may paroled. It will be recalled that Legislature Governor disagreed Fielder’s the 1916 bill should have suggestion removed a life sentence from the jurisdiction of the then Board of Inspectors. Prison committed Legislature to the responsibility
to determine in the first instance whether punishment should be life death. It another with the charged agency responsi- how life sentence shall bility deciding be executed. The jurors their task when perform completely they decide matter to them assigned evidence before them. What thereafter no concern of happens theirs. is no more to conclude that death proper be the penalty life because a sentence be commuted or the defendant *17 than it would for be a trial paroled, other criminal judge frustrate sentence to to an causes excessive deliberately impose to another agency. scheme statutory committing parole the sentence is a life That death should inflicted when be attribute We should not an abhorrent thought. is appropriate could not The that to the purpose Legislature Legislature. shall death penalty have intended that juries weigh by and that than a life sentence less something against does fit facts. at a which not punishment arrive process its misconception purpose, overcome a judicial original To shall in the 1919 amendment that that decision it out spelled in the else. upon nothing made the evidence case be would it intended a different course, Had Legislature alternative, an immutable sentence a third have authorized because it wanted the life. It did not so provide, for inflicted, because it believed death to be but penalty unjustly whether be the talent of one to anticipate beyond future will warrant amelioration of life circumstances sentence. the legisla-
We have no doubt that Rombolo misconceived 1919 amendment tive will and that designed conclude, therefore, that correct that error. We judicial cited overruled Rombolo the other cases above must be with the here insofar as inconsistent view expressed. is how to fulfill the practical problem legislative far as the is concerned a death jury will so sentence is a life death sentence a life sentence is sentence. Doubt a read of the of men less most have sentenced jurors parole life. an from indicates this If knowl inquiry deliberations, role in a mere refusal edge playing not eliminate the possibility to answer would of mis should be told simply carriage. Logically, must not be considered it. But subject parole an in fact of instruction to that effect is efficacy questionable there reside in the minds may jurors’ and since varying of parole, of the basis what seems understandings including belief, time alone passage to be suffices popular release, the jury entitle a as well prisoner parole. the true basis of informed of Hence question *18 should be but followed answered, a direction to exclude by from subject consideration. The instruction should be in essence as follows: “Any serving prisoner eligible a of is sentence life for considera- parole having years for tion release on after served of his
sentence, good less commutation time behavior and time credits diligent application assign- and allowed of earned reason work provides prisoner ments. The statute that no shall be released on parole merely good performance aas reward for conduct efficient assigned only him, of duties but if the State Board is of Parole opinion probability prisoner that, there is reasonable if such released, proper rightful place society, he will assume and law, without patible of violation that his release is not incom- society. prisoner parole with the welfare of A on released parole on remains for the balance of his life and if he violates parole may prison terms of he be returned to to serve the life sentence. your question, you subject I have answered but instruct that the possible parole your of may must be from excluded deliberations. Xou speculate parole as to whether would or would not be granted. you concerned, far as So are a life sentence is a life upon you sentence. If and after consideration of all the evidence a believe part recommendation for for life should be made your verdict, your duty it would be a violation to refuse to make that recommendation because of the existence another authority power responsibility parole.” respect
Eor reason, this the judgment must be reversed and the matter remanded.
IY. Defendant complains the refusal of the trial court that the charge (1) jury may consider the evidence offered on issue of in its insanity deliberations upon punishment, that a (‘2) recommendation based lack of evidence.
With to the first respect proposition, the trial judge directed the jury to consider all the evidence in the ease, using of the statute. language above, As stated counsel for defendant devoted his entire summation to the question punishment and relied heavily upon proof offered on the issue of insanity. in the Nothing court’s charge intimated Nor from any did inquiry this was improper. course uncertainty. any suggest Molnar, N. L. supra, majority
In State held defendant is not entitled to charge the court portion attention to directing jury’s particular *19 a its consideration of recom- the .evidence with to respect that the of the request Defendant urges purpose mendation. of the but to avoid portion proof, not to emphasize any is the that if it part jury on the likely misapprehension a has not been insanity that the defense of estab- concludes in is to lished, disregarded evidence portion We think to punishment. as deliberations subsequent we although this fear there is a reasonable basis for of the to the issue sound in leave general believe it to be with yet comment either way, without to penalty to which a charge the issue of insanity request to respect we have described the possible misunderstanding would obviate should be granted. lack proposition, to second respect
With recommendation, a defendant would evidence support a of the instruction on into this area portion transplant the issue of State v. guilt. doubt to applicable reasonable is Paola, It that a probable 5 N. (1950). lingering De J. in in fact be reflected the decision as would doubt to guilt defendant and hence a needs no instruc punishment as to a hand, suggest effect. On other to that tion as to punishment evidence should be factor is lack of a reasonable doubt notwithstanding as invite convictions issue matter of are penalty of guilt to guilt. two in the manner distinct, proposed confusion than to an helpful mischievous accused. be more would to consider other raised questions is unnecessary this appeal. upon is reversed and judgment given,
Eor the reasons further inconsistent proceedings remanded matter opinion. this with in There (concurring reversal).
Heher, are crucial questions policy involved in the course to be taken by the trial when the judge as to whether jury inquires life recommended under B. 2:138-4, S. conviction of murder in the first is to execu- degree, subject tive or administrative intervention by way pardon, parole, or time off for behavior. An good instruction in the affirma- tive is fraught accused, grave danger prejudice even an though accompanied by unequivocal declaration that it has no place whether the determining punishment shall be death or life imprisonment. And a refusal to respond to the hazard, have inquiry may some even the utter though irrelevancy of the subject matter made clear to the jury. But the former is far the for the greater peril, parole function would in that event be delineated in essentials, its and the jury would then be told to it as disregard entitled to no weight to the fixing penalty pursuant statute.
The information thus could induce the given withholding of the alternative of life penalty imprisonment, and could *20 induce a conviction. There can no assurance of the individual juror’s subjective reaction or against unwitting or subconscious adverse influence. As to the punishment, death penalty shall, unless the prevails its jury verdict, recommend life imprisonment; and, effective, to be the recommendation must be the unanimous affirmative choice Bunk, of the jury. State v. 4 N. J. 461 (1950).
And there is reason to believe that such every was the intent and statute, of current purpose the cases of State v. 95 N. J. L. 145 Schilling, & A. (E. 1920); State v. Barth, 114 N. J. L. Leaks, 112 & A. (E. v. 1935); State Dworecki, 126 N. J. L. 115 & A. (E. 1941); and v. State 124 N. J. L. 219 & A. 1940), to the (E. notwith contrary The amendment standing. 1919, 134, of c. provides one convicted of murder in the first shall suffer degree death shall, unless the jury verdict, its and ccby as a part thereof, and after the upon consideration of all the evidence, recommend” life and in that imprisonment, case “this and no punishment shall be greater imposed.”
182 act and original
The history interpretation given Martin, L. 436 & A. N. J. 270, in v. 92 1916, (E. c. State and the essential and intent make clear the 1919), import is to be case The evidence quality provision. no plays part considered; parole and pardon potential were vested act, jury in the Under the original inquiry. 1919, discretion; amendment, L. under with an arbitrary and act, exercise 134, judgment c. the current 2 N. J. Cooper, evidence. v. discretion based on the State had in view circum 540 obviously (1949). Legislature for a in the case particular mitigation stances calling law, in the sound discretion. the full jury’s rigor views pursue inquiry. My But there is no occasion to dissents in are in the State expression this given regard Molnar, A. 327, N. & and 1945), J. L. (E. v. Bunk, restated and need not be here. supra, State v. not be informed rule is that should The general subject parole, as to the law pardon See, denied. e. g., People its end should be request 146, 252 P. Ct. 1953); 40 Cal. 2d (Sup. v. 2d Barclay, Osborn, 380, 2d 850 Ct. 37 Cal. 2d 231 P. People v. (Sup. ; v. Commonwealth 1951) Virginia, Jones Va. 1952); 35 A. L. R. 2d 761 Ct. (Sup. App. S. E. 2d State, 65, 70 E. 2d 710 Ct. 209 Ga. S. (Sup. Strickland collected in 35 A. L. R. 2d 769. 1952) —these others among I reverse would the conviction direct Accordingly, trial. new I in the concur (concurring). opinion Eeafois, the Chief Justice. the case back for retrial. opinion
Under that going this circumstance makes it necessary In my judgment, the trial court’s denial discuss the problem presented by legal *21 in effect that charge jury defendant’s request of the adduced the issue of con- insanity may the evidence on be the matter of Those of deciding punishment. sidered in in opinion who feel that joined majority my colleagues the particular is not question directly involved and accord- ingly express no of view they point thereon. request espouses abnormal principle or
subnormal mental a case, condition of defendant in a capital even it though may test in- satisfy M’NagMen is in sanity, admissible evidence and ais proper subject consideration in decision as to whether reaching the death should be penalty or imposed life should be recommended. a rule Such is a just one; humane to be ought on the law engrafted of this state authorized to use it as a factor in the evaluation—not of guilt or life innocence—but of or death for the defendant.
A capital case is the one in only which, after a finding guilt, jurors sentence the defendant. are They told if return a they verdict of murder in the first degree, the death penalty that if mandatory, but recommend they imprisonment for life “no shall im- greater punishment be N. J. 2A posed.” 8. :113-4. In other every dealing of criminal type offense, fixes the judge punishment in a few (except instances where the has estab- Legislature lished a mandatory minimum However, in penalty). no instance can judge, no matter how long experience the criminal law administering or how vast his knowledge nature, of human sentence a defendant without first obtaining a pre-sentence report from the probation department R. R. involved. county Such are 3:Y-10(&). reports pre- men trained pared by field of criminal responsibility. over the They entire life range offender—his religious education, training, environment, life, habits, work family medical if and the history, any, like—in an endeavor to to the mind of the court all bring of the elements pertinent to the of punishment and degree íot rehabilita- potentiality if tion. And either the probation department or the judge feels that a examination is psychiatric desirable or it is ordered. On the helpful, basis of own my experience as a I County Court do not judge, believe that adequate sentences can meted just he out without such investiga-
184 the concept recognizes The cited rule of this court
tions. law, justice the criminal in the administration of as well the offender served the only by punishment fitting as to the crime. of determination where, after a
But in the situation one of death, a jury or the issue is life imprisonment guilt, reach a decision solely are laymen required inexperienced That homicide. of or innocence on evidence guilt Wise, N. J. 59 (1955); law. v. is our case State existing Molnar, Cordasco, v. State 2 N. (1949); State v. J. (E. Barth, 114 v. A. State 1945); 133 N. J. L. 327 & Favorito, (E. 115 N. J. L. & A. v. 1935); N. J. L. 112 State James, 96 N. L. 132 & A. v. 1935); State (E. Maioni, L. & A. N. J. 339 (E. & A. 1921); State (E. v. disserves such a doctrine 1909). I am convinced that of the statute. misconceives purpose an accused condition of The mental status or capacity he may the act of Although is an of part killing. integral of disability because a verdict escape guilt within the legal point insanity mind does not reach the demand definition, society dictates of a humane ordinary as to the the moral judgment in the formulation of of punishment, for purposes degree responsibility from normal such or departure evidence of disability In and material. considered relevant deciding to be ought death it is inconceivable whether the killer should be put law, a should be that, system under modern mental short of disability, insanity, denied all of a knowledge in the as a influence commission which operated motivating of the crime. At this in point guilt proceeding, the sole issue is punishment. crime is no longer question; deficienejr that mental appearing It has been suggested to dis evidence, which did not out wipe ability and so was not defense between right wrong tinguish well in con justify the criminal charge, might of life that a recommendation cluding Molnar, supra, State opinion, warranted. See dissenting 339. And the J. L. at majority opinion 133 N. pages in the that such a course would be ease indicates present But if made to strike what a motion is State proper. that it such from the record on the does testimony ground not sustain defense as was done sus insanity, (and *23 Cordasco, 195; in J. at State v. tained) supra, page N. Wise, or under the obvious of v. implication supra, State 19 N. J. at 107? The of that course page possibility being the retrial me on of this indictment to pursued impels express the views outlined herein.
Other have dealt with the jurisdictions precise problem. case, statute the in a Wyoming permits jury capital trial, whether a of a their plea on or to guilty "qualify ” verdict ‘without thereto, adding capital punishment/ 32-201, in event the Rev. St. which sentence is § be life In its imprisonment. required discussing applica- the tion, Court said: Supreme for in “Counsel the defendant admit that cases in which the trial
judge imposes jury, punishment, the without the aid of a is proper inquire him into the circumstances under which the * * * crime was committed. It be that the same latitude jury penalty, not allowed when fixes should be the the which permissible judge so, quite would when the trial does but it is apparent examining that the same reason for into the circumstances equally While, in of the commission of the crime exists both cases. stated, jury impose penalty as discretion of the of the the death untrammeled, they cannot, very is in life the nature things, bring intelligent verdict, they of in an unless know the committed, circumstances under which the crime was surrounding facts, including and all the age defendant, intelligence, of the the crime, commission of the his mental condition at the time and other relevant facts which the might properly jury aid in the exercising hardly their discretion. is credible that the statute contemplates jury blindly that shall exercise their discretion knowledge and without That must be in cases in facts. true guilty pleads much as in in which the defendant as so those eases pleads guilty, that, too, notwithstanding which he the fore- going by any that rule should be left untrammeled instruc- * * * They exercising in tion of the court their discretion. have discretion, lawmaking power true, a broad it is but one which the light wisely prudently exercised, should be in the intended contemplated they might, Surely, evidence. it was never regard case, facts and circumstances of the arbi- without to the punishment.” trarily reason, question and without act Wyo. Brown, (1944). 151 P. 2d State murder Under statute of that state first defining degree above, as has been indicated fixing penalty, court, as a matter of practice, may accept plea guilty of murder the first and then degree impanel order to have the determined. It must be punishment recog- nized that in many murder cases the defendant admits his and the only is the matter of guilt question open punish- ment. The procedure courts—and adopted by Wyoming a number of other permits expe- jurisdictions—obviously ditious disposition homicide eases. It circumvents long trials and avoids the expenditure public moneys large in order to usually required prove accused guilt concedes. In Few if the readily trial court Jersey, accepts murder, of non vult to first plea death degree penalty refused, cannot be inflicted. But if such a is plea usually because feels prosecutor the death penalty warranted and therefore recommends its acceptance, against a not is entered guilty plea and the case proceeds trial. *24 At trial such a the State is required formally prove guilt with all the attends an solemnity actual ordinarily contest on subject, the accused sits court although crime, to admit his awaiting opportunity although every one concerned knows that the only is that problem However, of punishment. our practice stems from mandate and statutory must come from change N. J. 2A :113-3. The S. act Legislature. barring plea 235, was in 1898. L. c. adopted 1898, 824. The guilty p. modern modus more of other states operandi may justifiably attract attention in Few Jersey. enactment pertinent of Pennsylvania provides: degree “Whoever is convicted of the crime of murder the first guilty felony
is shall be sentenced to suffer death in the provided by law, undergo imprisonment life, manner or to for at jury trying case, penalty the discretion of the which shall fix the * * * pleas guilty, court, its In verdict. cases of degree, shall, where it determines the crime to be murder of the first discretion, impose at its sentence of death or 18 P. S. life.” 4701. § 18? In this Court of that statute, Supreme construing state said: is, course, “It true that is be informed entitled to properly regarded
of all
the circumstances
and conditions
to be
penalty;
as relevant
determination
it has
therefore
testimony
concerning
incapacity
been held that
the mental
of a
charged
murder,
though
insanity,
defendant
even
short of
purpose.”
Wooding,
admissible for that
v.
355 Pa.
Commonwealth
555,
(1947).
declared that
“should be
intelligently
and,
end,
to know what
they
penalty,
ought
man
whom
are
asked to
manner of
it is upon
they
being
sentence,—his criminal
his demonstrated
proclivities,
impose
order, and,
hand,
law and
the other
such
attitude toward
on
exist in the nature of impaired
factors as may
mitigating
deficiencies,
or other
mental
state of intoxication
health,
Bibalo, 375
And in Commonwealth v.
circumstances.”
*25
the
found
257,
Supreme
which empowers case, said: degree necessarily that, in determine the “It follows order to punishment imposed death, [as life to be this offense between years], or for a not less than 14 evidence must term or, admitted, admissible, if be admissible' which would not have been People, nothing,
could have availed at common law.” Fletcher v. 184, 80, (Insertion mine.) (1880). 117 Ill. 7 N. E. 82 An Idaho law the court in homicide cases to hear permits either in “circumstances” or mitigation aggravation after conviction. The thereof punishment interpretation Owen, 394, in 73 253 P. Court State v. Idaho Supreme 2d 203 is of interest: (1953), “* * * open It to debate as to the ‘circum whether 19-2515, 0., particularly stances’ mentioned in I. refer § to circum surrounding tending stances aggravate the commission of crime and mitigate involved, or the character of the conduct or convict, himself, whether such circumstances include also the as an individual, background, age, upbringing which would include his appropriate and environment or other matter to a determina degree culpability. tion of the be think that the statute We should given particularly interpretation, capital broader case. State, 42, James v. 53 Ariz. P. 2d 84 1081. contemplates It, therefore, appears fixing the law penalty, court, requested by party, may the should hear and consider circumstances in when either aggravation mitigation or punishment. logically proper follows that if it is for the Jury evidence, court to hear arid consider such where it is called punishment, opportunity to fix the should have the to consider proof, subject, course, proper limiting such to a instruction jury’s pun- consideration of such evidence to the determination of ishment, cautioning determining and innocence, not to be that it is considered in guilt or to influence be allowed the determination of question.”
Similar
be found in
expressions may
Colorado: Abshier
507,
v.
87
289 P.
Colo.
Ct.
People,
(Sup.
1930);
State,
14,
Indiana:
v.
121 N.
Sherer
Ind.
E. 369 (Sup.
State,
Ct.
Oklahoma:
v.
1919);
327,
Prather
Okl. Cr.
Wachbnbeld, (dissenting). when has outmoded or a law become contrary changing justice. to our fundamental concept without and by Here the defendant was guilty, question murders ever admission, of one of the most brutal own un- small, man, was victim, weak, His old recorded. with the death a horrible beaten to mercifully onslaught with a He into eternity end of a was battered butt gun. and frenzied viciousness difficult of descrip- brutality savage tion. The simple. excuse for the heinous crime him we have wanted narcotics. Eor money buy
murderer many as it has stood on our books for years, the law changed and I wonder why. indicates a law in altered times society
When changing broad, I restricted or too have useless or too has become justice so that quality added voice to my change the law to further change protect but to preserved, might element, increase their criminal privilege the worst of our others with is not immunity, their to prey upon right should be improved. of how justice my concept were meant for the and our Constitution good Our laws late seem bad, but all interpretations well as the as element and thus the criminal continue constantly benefit citizens were responsible protection to diminish fairness is a commodity public Fundamental receive. have the occasionally privilege enjoying. should objects: protection two essential The law has individual rights. Lately the preservation society seems seems almost what the society judiciary forgotten *27 think conscience my is a march of Instinctively progress. blocks my agreement. critics have late the courts
Many appeared condemning because the trend has evinced considerable major emphasis on the increased the accused and on protection establishing additional must met before procedural which be requirements course, criticism, convictions can be obtained. Public control, should not but is abundant and of enough at sufficiently judiciary intelligent quality suggest least a When a system destroys for reflection. pause judicial confidence, in effect it Justice is a public destroys itself. cornerstone which must never out of balance. be
The Director the EBI has statements issued public the terrific increase of crime and for showing asking greater aid from the courts so that some inroads made. Conference,
At the Meyner Judicial Governor urged courts to in cooperate attacking “alarming upsurge crimes of violence” and asked “firm for a and realistic attitude in offenders in dealing convicted cases of violence.” personal
The are to assist sentencing judges by attempting stiffening level, at the trial while we at penalties the top open difficult; more successful more loopholes, making prosecution time this for who murdered gentleman cold-bloodedly so he could narcotics. His victim has get money buy been buried, but he wants more than fair trial on the law as it has determined. He already been wants the law changed that he can so derive consideration than those who greater him. preceded of the court to inform the in the manner right jury, case, is, in the instant that a life in fact, sentence
employed a misnomer and that the Parole Board or another agency shorten the term has might considerably stood with un- on for approval our books well equivocal nigh years. has affirmed by been dozens of decisions and was reaffirmed unanimous court in an by opinion an written Chief by Justice as late as Fovember in Vanderbilt which he said of almost the identical used the trial court language this Roscus, case: “Such instruction was State v. proper.” N. J. 429.
To say court has been these over many years wrong and that that which has become imbedded in our deeply law criminal should now be extirpated bold venture quite in which I cannot join.
The majority reverses the conviction opinion because the to the charge was too limited on the jury power of the Parole Board to shorten the so-called sentence. life It then inconsistently holds that court have should directed the “to exclude subject from consideration.” Why there was reversible error failure to inform completely view of the majority’s determination that subsequent the jury could take the matter into consideration is *28 beyond my understanding.
Those in know that a life authority sentence in the case is average actually term of 14 to approximately years, why which jury, pronounces punishment, should not be so informed and take it into consideration is beyond my Life comprehension. is a false and the is entitled designation to know its true meaning. is’ public aware it. already painfully I would affirm the judgment conviction below. For reversal—Chief Justice and Justices Weintraub, and Proctor—-5. Heher, Jacobs, Eranois Burling—2. For Wacheneeld affirmance—Justices