On error to the Supreme Court, whose per curiam is printed in 7 N.J. Mis. R. 778.
For the plaintiff in error, George E. Cutley.
For the defendant in error, John Drewen, prosecutor of the pleas.
The opinion of the court was delivered by
WALKER, CHANCELLOR. John King, the plaintiff in error, was indicted and tried in the Hudson Oyer and Terminer for the crime of murder. He was convicted of murder in the first degree and sentenced to imprisonment for life, according to the recommendation of the jury. He sued out a writ of error from the Supreme Court to review the legality of his conviction, and that court in a per curiam said: "The writ of error must be dismissed, as it does not appear in the state of the case sent up with the writ of error that application was made to the Chancellor for a writ of error to the Supreme Court. This must be done under the case of State v. Giberson, 119 A. 284." See, also, the official report, 94 N.J. Eq. 25.
Upon dismissal of the writ of error out of the Supreme Court plaintiff in error sued out a writ of error from this court directed to the Supreme Court, and under it not only seeks to reverse the judgment of the Supreme Court on the ground just adverted to, but also argues the merits of the case upon the other assignments of error and specification of causes for reversal assigned and filed in the Supreme Court, which
is proper practice, in the event the case was properly in the Supreme Court, and therefore properly here. They all are: first, that the Supreme Court erred in dismissing the writ of error issued out of the Supeme Court as improvident, and if that point be decided for plaintiff in error, second, that there was error in the refusal of the trial court to charge as requested by defendant, third, that there was error in the charge of the court, and fourth, that the verdict was contrary to and against the weight of the evidence.
First. The judgment of the Supreme Court dismissing the writ of error was proper.
Counsel for the plaintiff in error on this head argues that many cases which he cites, apply because they were considered on error to the Supreme Court without an allocatur of the Chancellor. However, whenever the court's attention was directed to the point under review it was decided that the statute of 1795 was still in force and effect.
In the case of In re Baronne, 97 N.J.L. 249, the Court of Errors and Appeals gave the subject consideration. That case was on the question of admission to bail, and bail and error are analogous in capital cases, and Mr. Justice Bergen in the Supreme Court (S.C. 96 Id. 374), said that assuming a capital case is one in which the only punishment is death, the defendant was under an indictment which charged a capital offense, and the judgment against him did not require the taking of his life, but, notwithstanding, if successful (on error), he would remain charged with a capital offense, and the jury on the second trial might withhold any recommendation relating to punishment, if they should find him guilty of murder of the first degree; and that where the indictment charges the defendant with murder, it remains a capital case until finally disposed of, and is not within the mandatory clause of the section referred to concerning bail, because the crime charged is a capital one and its character is not changed by bringing a writ of error. Baronne took a writ of error from the judgment entered on this decision, and in the opinion of the Court of Errors and Appeals, which led to a dismissal of that writ, Mr. Justice Kalisch observed (In re Baronne, 97 Id. 249),
that as the crime of murder in the first degree is by our statute punishable with death, it follows that a person convicted of that degree is subject to the imposition of the death penalty unless the jury recommends that life imprisonment be inflicted; that, notwithstanding the imposition of the milder punishment, it is quite clear that the conviction in its very nature remains a conviction of a capital ...