On writ of error to the Camden County Court of Oyer and Terminer.
For the plaintiff in error, Rocco Palese (Carl Kisselman, of counsel).
For the defendant in error, Gene R. Mariano, Prosecutor of the Pleas.
The opinion of the court was delivered by
COLIE, J. Howard Auld was indicted, tried, found guilty and sentenced to death for the murder of one Margaret McDade. The case is before this court on a bill of exceptions and on the entire record. R.S. 2:195-14 and 16. The theory of the state's case was that the deceased was killed by Auld while committing or attempting to commit rape and hence was murder. R.S. 2:138-1. Rape is having carnal knowledge of a woman forcibly against her will.
The evidence disclosed that on August 14th, 1945, during a celebration of V-J Day, Auld met the deceased in Dellmawr, Camden County; that together they left the scene of the celebration to take a walk, during the course of which he carried the deceased into the bushes and had, or attempted to have, intercourse. Deceased "hollered" and scratched, whereupon Auld struck and choked her into insensibility. Thereafter, he stripped her body, carried it to a pumping station nearby and dropped it down a cistern. Five days later, some boys while playing about, raised the iron lid, saw the body and reported it to the authorities. The defense was that the intercourse was voluntary upon the part of the deceased and further that plaintiff in error was insane.
The assignments of error and specifications of causes for reversal are numerous but are presented in the brief of plaintiff in error under twelve points.
Points I and II allege error in the refusal of the trial court to charge the jury with respect to their right in case of a verdict of murder in the first degree to recommend imprisonment at hard labor for life. The 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." Requests to charge numbers 5, 6, 21 and 34, the court declined to charge. The sixth request was in the words of the statute. It reads:
"6. 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 the consideration of all the evidence, recommend imprisonment at hard labor for life, in which case this and no greater punishment shall be imposed."
A trial court is not required to instruct the jury in the precise words of counsel asking the instruction, Gardner v. State, 55 N.J.L. 17; affirmed, 55 Id. 652, but when a request to charge calls for a correct legal principle, is applicable to the testimony, and is clearly material, the defendant is
entitled to have it distinctly charged. State v. DeGeralmo, 83 Id. 135. In its brief the state does not, nor could it in reason, contend that plaintiff in error was not entitled to a clear statement of the subject-matter of the statute but rests on the argument that "the trial court did, in substance, charge the jury to consider all of the evidence in arriving at any of the five possible verdicts, the fourth one being that of guilty of murder in the first degree with a recommendation of imprisonment at hard labor for life." Our examination of the entire charge fails to disclose that the ...