On writ of error to the Union County Oyer and Terminer.
For the plaintiff in error, John P. Owens.
For the defendant in error, Abe J. David and Thomas F. Hueston.
The opinion of the court was delivered by
LLOYD, J. Plaintiff in error was convicted of murder in the first degree without recommendation of life imprisonment and sentenced to death according to the statute. The writ of error brings the case up on bills of exception and under the one hundred and thirty-sixth section of the Criminal Procedure act.
The assignments of error and specifications of causes for reversal, twenty each in number, are substantially the same. Of these the refusal of the trial judge to charge the sixteenth and seventeenth of the defendant's requests for instruction is argued.
The first of these requests was in the language of the statute, drafted in accordance with the opinion of this court in the case of State v. Wilson, 60 N.J.L. 171, and reads as follows:
"Every person convicted of murder in the first degree shall suffer death unless the jury shall, by their verdict, and as part thereof, upon and after consideration of all the evidence, recommend imprisonment at hard labor for life, in which case this and no greater punishment shall be imposed, and every person convicted of murder in the second degree shall suffer imprisonment at hard labor not exceeding thirty years."
"When the character and extent of a crime is made by law to depend upon the state and condition of the defendant's mind at the time, and with reference to the act done, intoxication, as a circumstance affecting such condition and state of the mind, is a proper subject for inquiry and consideration by the jury. If by law, deliberation and premeditation are essential elements of the crime, and by reason of drunkenness or any other cause, it appears that the prisoner's mental state is such that he is incapable of such deliberation and premeditation, then the crime has not been committed."
The facts which the evidence tended to prove and on which these requests were predicated were as follows: On the early morning of March 21st, 1937, Roach broke into the apartment occupied by one Celia Kadesh and her daughter Bessie in Plainfield. While Roach was in the act of stealing a pocketbook from the apartment Mrs. Kadesh awoke from sleep and Roach struck and killed both the mother and daughter, escaping with the pocketbook of Mrs. Kadesh which was later found in his ...