On error to the Salem County Court of Oyer and Terminer.
For the plaintiff in error, H. Norris Mangan.
For the defendant in error, John F. Bruther.
The opinion of the court was delivered by
BODINE, J. The plaintiff in error has twice been convicted of murder in the first degree, the jury not recommending life imprisonment at either trial. R.S. 2:138-4. The first conviction was set aside because of trial error. State v. Jefferson, 129 N.J.L. 308.
Of the facts in the case little need be said. The victim of the murder was brutally killed. The defendant's fingerprints were upon her glasses. Competent medical proof showed that there had been at least an attempt to commit rape. The defendant signed a written confession.
The jurors were examined as to their competence before being sworn. R.S. 2:92-10. Argument is made that the court should have allowed a challenge for cause as to juror Jacob Riggins. Our statute (R.S. 2:138-4) provides: "Every person convicted of murder in the first degree, his aiders, abettors, counselors and procurers, shall suffer death unless the jury shall by its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend imprisonment at hard labor for life, in which case this and no greater punishment shall be imposed." The italics are mine.
Juror Riggins' pertinent testimony was as follows: "Q. Now, in the light of that statute, do you believe that everyone convicted of murder in the first degree, should suffer the death penalty? A. I do." After much discussion the examination
resulted as follows: "Q. So there must be some mitigating circumstances brought out? -- otherwise, if he were to be convicted of first degree murder, you would feel he should be given the death penalty, notwithstanding that you could, as a member of the jury, fix the penalty as life imprisonment? Isn't that the case? A. That's the case."
The testimony shows no malice or ill will upon the juror's part. He was not opposed to capital punishment -- a ground for the state to challenge for cause. State v. Juliano, 103 N.J.L. 663; State v. Favorito, 115 Id. 197. A juror may have formed an opinion as to the guilt of the accused, but as long as he has a firm intention to be guided by the evidence adduced and the law, as charged by the court, and has displayed no malice or ill will to the accused, there is no reason whatever why he should not serve as a juror. There is nothing to show that the juror challenged did not stand indifferent between the state and the accused. State v. Spencer, 21 Id. 199; Wilson v. State, 60 Id. 171; State v. Turco, 99 Id. 96; State v. Stephan, 118 Id. 592.
It is argued that in arriving at the recommendation of life imprisonment the jury need not consider the evidence in the case. State v. Martin, 92 N.J.L. 436; State v. Carrigan, 93 Id. 268; affirmed, 94 Id. 566. That may have been so under the statute in existence when those cases were tried, Pamph. L. 1916, p. 576; but the legislature realizing that the decision in the Martin case was unfortunate, there being two strong dissenting opinions, amended the act (Pamph. L. 1919, p. 303), to the end that it provide as in the present revision and require that a recommendation shall be made after considering all the evidence.
A juror, who determined a question so important alike to the state and the accused without considering all the evidence adduced, would not be an impartial juror. Anything in State v. Martin to the contrary would be expressly overruled if it were necessary, but it ...