Decided: May 19, 1930.
THE STATE OF NEW JERSEY, DEFENDANT IN ERROR,
JOHN KING, PLAINTIFF IN ERROR
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.
[106 NJL Page 339]
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
[106 NJL Page 340]
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),
[106 NJL Page 341]
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 crime and falls within the class of cases in which bail under our statute shall not be taken pending appeal.
In the case of State v. Mowser, 91 N.J.L. 395, the defendant was convicted of murder in the first degree with recommendation to life imprisonment. A writ of error was issued out of the Supreme Court, without the order of the Chancellor, and Mr. Justice Swayze, in that tribunal, reviewing the conviction, observed that no question had been made as to the propriety of that course, and it was assumed that the case was not one punishable with death since the jury recommended life imprisonment. That case (State v. Mowser) went to the Court of Errors and Appeals, where it was reversed, but on ground not involving the point under discussion here, which was not mentioned. State v. Mowser, 92 Id. 474.
It is the contention of the plaintiff in error that his punishment for the offense of murder in the first degree, coupled with the recommendation to life imprisonment, while it may have been potentially punishable with death up to the time of his conviction, from the instant the jury made its recommendation it came within the words of the statute, that writs of error in all criminal cases shall be writs of right and issue of course.