On writ of error to the Salem County Court of Oyer and Terminer.
For the appellant, Joseph Narrow.
For the respondent, William A. W. Grier.
The opinion of the court was delivered by
BODINE, J. The defendant was twice convicted of first degree murder, the jury making no recommendation of life imprisonment. N.J.S.A. 2:138-4. The first conviction was set aside by a divided court. State v. Leaks, 124 N.J.L. 261. The defendant was born twenty years ago in Georgia and had gone through four years of schooling. His statement of his crime is as follows: "I went to Mr. Howard Meade's farm. I saw him coming from the barn with two buckets and he went in the house and came out at the time I was walking in his driveway. I says to him, 'good morning,' and I asked him where was a place around that I could get a job and he told me there was a farm down the road on the left by the name of Garrison. He said, 'you might can get a job there,' and I asked him for a drink of water and he told me to come in and he pumped the water and gave it to me. When I drank the water, I gave him the cup back. He made a lefthand turn and I hit him with my fist and he fell down and then he got up and tried to go outdoors. I grabbed him and I hit him again. Then he laid down and then he went to groaning, and he tried to get up again and then I hit him with a piece of wood and then I went and looked for the money, then I found $12.02 and I left."
The verdict seems proper in view of the foregoing testimony. N.J.S.A. 2:138-2. The assignments of error argued are two in number: The first, because the court said in its charge: "He killed a man or inflicted a blow from which the man later died, after the man had given him a drink of water." In view of the defendant's statement, this portion of the charge seems to have been well within the province of the trial court.
The next assignment is with regard to that which the trial judge said respecting the jury's right to recommend life imprisonment. N.J.S.A. 2:138-4. It seems perfectly clear from the entire charge that the question of recommendation of life imprisonment was left to the unrestricted discretion of the jury. State v. Martin, 92 N.J.L. 436. The trial judge said in part: "If you are satisfied from all the evidence that Willie Leaks is guilty of murder in the first degree then the legislature has permitted you to recommend not that the defendant be put to death; that is not the purpose not the language of the act. But on the contrary the legislature has given you the right to say to the court that life imprisonment shall be inflicted upon this defendant as punishment. It is not that you are inflicting the punishment, but you have the right to say to the court that you recommend that this man be imprisoned at hard labor for life, and when you make that recommendation then the court can impose no greater punishment. However, if you do not make that recommendation then the burden is cast upon the court; not upon you."
The argument seems to be that the court thereby precluded the jury from exercising their discretion and may have led them to believe that they were not responsible for the defendant's life. This is not a fair reading of the court's charge. The jury must clearly have understood that they exercised the discretion. Nor can it be seen how they could have misunderstood their duty in the premises. Obviously, those charged with the enforcement of the law are not responsible for the outcome so long as they perform their duty.
The judgment is affirmed.
For affirmance -- THE CHANCELLOR, PARKER, CASE, BODINE, DONGES, PERSKIE, PORTER, DEAR, WELLS, RAFFERTY, JJ. 10.
For reversal -- THE CHIEF JUSTICE, HEHER, WOLFSKEIL, HAGUE, JJ. 4.
BROGAN, CHIEF JUSTICE. (Dissenting.) In a case as important as this it seems fitting that those who voted against the majority ...