On appeal from the former Court of Oyer and Terminer in and for the County of Mercer.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Heher, J. Oliphant, J. (Dissenting in part.) Oliphant, J., concurring in result.
All six appellants were sentenced to death upon a verdict of "guilty" rendered by a jury August 6, 1948, upon the trial of an indictment returned in the former Mercer Oyer and Terminer charging murder in the statutory form. R.S. 2:188-11. The accused sued out a writ of error from the old Court of Errors and Appeals, and also appealed; and the cause was brought on for argument before the new Supreme Court pursuant to article XI, section IV, paragraph 8 of the Constitution of 1947 and chapter 367 of the Session Laws of 1948.
The entire record of the proceedings had upon the trial was returned with the writ of error, pursuant to R.S. 2:195-16.
The case was tried and submitted to the jury on the theory of a homicide committed in the perpetration or attempted perpetration of a robbery.
The lethal attack was made on the morning of January 27, 1948, on the premises No. 213 North Broad Street, in the City of Trenton, where the victim, William Horner, and a woman reputed to be his wife, Elizabeth McGuire, conducted a second-hand furniture store. There were two rooms on the first floor of the store premises, each well filled with old furniture ceiling high. The floor of the rear room was two steps lower than the floor level of the room facing the sidewalk. [2 NJ Page 546] The putative wife testified that English, Forrest and Wilson entered the store, apparently together, but that English and Forrest told her that Wilson was not "with" them; that English and Forrest proceeded to the rear room, where the deceased Horner was; and that Wilson asked her to show him a stove, and, while so engaged, she was struck on the head by an instrument, and the blow rendered her unconscious or partially so, but she was finally able to go to the door and make outcry. The accused are all colored. About two minutes before the cry of distress, two colored men were seen leaving the Horner store, not hurriedly but slowly. The witness could not identify either of them among the accused. Horner was found lying unconscious on a mattress in the rear room. He had a compound cominuted fracture of the skull which the medical examiner said "might have been caused by a blunt instrument." A full soda water bottle lay on the floor nearby. The neck of a broken bottle of the same type and splintered glass were found at the point where the attack was made upon Mrs. Horner; and there was "blood on the floor" and "blood and some liquid material" on a cot nearby. There were strands of hair on "the jagged edge of the broken neck of the bottle," similar to Mrs. Horner's. Mrs. Horner saw none of the other defendants in the store on the day of the homicide. But she said that Cooper had called there the prior January 16th to inquire about a mattress; that English and Forrest came to the store on January 23rd, and asked to see a mattress, and that Forrest selected one and made a deposit of $2 with the deceased Horner as earnest, for which she gave him a receipt; and that English and Forrest returned on January 26th, and requested and received a return of the deposit, for which Forrest gave a receipt which a handwriting expert for the defense testified was not signed by him. The State contends that MacKenzie was a lookout stationed not far away, at the intersection of North Broad and Perry Streets. A neighborhood retailer of soda water testified that on the morning of the day of the homicide two colored men purchased and carried away two bottles of soda water, the containers being of the same type and size as the
bottles found in the Horner store; later on the witness said the purchase was made by one colored man. She did not identify any of the accused as the purchaser; nor was she asked if she could do so. There was no testimony except Mrs. Horner's of the presence of any of the accused at the scene of the crime on the day of its commission. Cash in the total sum of $1,642 was found in Horner's trouser pockets after his removal to the hospital.
English was arrested February 6, 1948; Wilson, Cooper, Forrest and Thorpe were taken into custody the following day; and MacKenzie was apprehended early on the morning of February 11th. They were all arraigned later in the morning of February 11th. Meanwhile, they remained in custody. The arrests were made without a warrant. Wilson maintained his innocence throughout. What purport to be confessions of guilt made by all of the accused except Wilson were admitted in evidence. These purported confessions are challenged as involuntary and "wanting in due process."
The State offered the confessions as proof of the presence of all of the accused except MacKenzie in the Horner store on the morning of the day of the fatal attack, and of MacKenzie's presence nearby as a lookout; also as evidence of the plan and purpose to rob. All the defendants set up an alibi.
The judge did not have jurisdiction to pronounce the sentence of death.
The verdict was "guilty" merely; and thus none of the accused was convicted of murder in the first degree. The return to the writ of error certifies that the accused were "found guilty in manner and form as they stand charged under the indictment and are guilty of murder in the first degree;" and that on the poll each juror affirmed his concurrence in that verdict. But, by an order made by the judge in the Mercer County Court on January 13, 1949, the return was amended to accord with the fact as entered in the clerk's
minutes, and so the verdict of the jury as to each of the accused is shown to be "guilty," without more.
One cannot be put to death for homicide unless there has been a verdict by a jury, after trial of the issue in the constitutional mode, establishing in a specific terms his guilt of murder in the first degree. This is a peremptory statutory direction. It is provided that murder perpetrated "by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in perpetrating or attempting to perpetrate arson, burglary, rape, robbery or sodomy, shall be murder in the first degree; and all other kinds of murder shall be murder in the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder in the first degree or in the second degree." R.S. 2:138-2. And it is further provided that 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 life imprisonment, in which event no greater punishment shall be imposed. R.S. 2:138-4. The accused may not plead guilty to an indictment for murder: a plea of non vult or nolo contendere is permissible, but the death sentence cannot be imposed on that plea. R.S. 2:138-3.
The State suggests that the provision for the designation of the degree of murder of which the accused has been found guilty is applicable only to "murder perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing," since murder committed in the perpetration or attempted perpetration of one of the enumerated felonies is murder of the first degree, even though the elements of deliberation and premeditation are wanting. But this would constitute a disregard of the plain letter and the indubitable reason and spirit of the statute. The power to exact the extreme penalty was not to be left to doubtful inference; the sentence of death could be
pronounced only upon the return of a verdict of guilty of murder of the first degree in certain and definite terms, unaccompanied by a recommendation of life imprisonment.
The indictment does not charge murder in the commission of a robbery. It does not specify the manner in which or the means by which the death of the victim was accomplished. In accordance with the statutory formula (R.S. 2:188-11), it charged murder without regard to degree or circumstance; and this sufficed. The offense of murder remained as it was at common law before the statute: the distinction of degree has reference to a difference in punishment. The most heinous are punishable by death or life imprisonment, as the jury shall determine; those wanting in the same degree of moral perversion, by punishment less severe. But it is of the very essence of the statutory procedure that the jury adjudge the degree of guilt and thereby the character of the punishment. Graves v. State, 45 N.J.L. 347 (E. & A. 1883). A killing which constitutes murder at common law or under the statute is presumed to be murder in the second degree; and the burden is laid upon the State to establish circumstances which would render it murder of the first degree under the statutory provision cited supra. Brown v. State, 62 N.J.L. 666, 669 (E. & A. 1899); State v. Leo, 80 N.J.L. 21 (Sup. Ct. 1910).
It is not a sufficient answer to say that the theory of the State was a killing in the perpetration or attempted perpetration of a robbery by the accused; and that this was the issue submitted to the jury for determination, and the alternative to acquittal under the charge was a conviction of murder in the first degree. First, the statute is imperative in its command that, if the accused be found guilty, the jury shall determine whether the offense be murder in the first degree or in the second degree; and secondly, we have no way of knowing from the verdict as rendered whether the issue of degree was even considered by the jury, much less determined. The accused is subject to the extreme penalty only in case there shall be a conviction of murder in the first degree in specific terms, unattended by a recommendation of life imprisonment;
and the infliction of the death penalty upon a mere verdict of "guilty" is wholly nugatory. It goes without saying that a verdict of "guilty" upon an indictment which simply charges "murder without regard to the degree" is not a verdict of guilty of murder in the first degree. A finding of circumstances constituting murder of the first degree is not to be annexed to a verdict of "guilty" by intendment or a presumption based upon the evidence. That is a solemn obligation of the jury in a matter of the utmost gravity; and its fulfillment cannot be made to rest on bare inference. The death sentence cannot be pronounced unless the verdict is definitive of the degree of guilt which entails that penalty. Not only is it understandable that the Legislature deemed it essential that in resolving an issue involving the death penalty or life imprisonment, the finding be specific and not left to conjecture; it is inconceivable that it would not have so provided.
This was the holding in the case of State v. Turco, 98 N.J.L. 61 (Sup. Ct. 1922). There, also, the evidence tended to show a killing in the commission of a robbery; and there, also, the jury were instructed that under the law the accused was either guilty of murder in the first degree or of no offense at all. There, too, the indictment was in the statutory form; and the conclusion was that the death sentence cannot be pronounced unless there is a specific finding by the jury of murder in the first degree. While that was not an adjudication of the court of last resort, it has ever since stood unchallenged; and the failure of the Legislature to exercise its amendatory power is significant of acquiescence in that interpretation. We consider that that case was soundly reasoned and decided. It is not a differentiating circumstance that the death sentence here was pronounced ...