On appeal from the Hudson County Court, Law Division.
For reversal -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt. The opinion of the court was delivered by Wachenfeld, J. Vanderbilt, C.J. (dissenting).
Greely and Deady were indicted and convicted of murder and, in compliance with the recommendation made by the jury, were sentenced to life imprisonment.
The indictment charged the defendants, on the 8th day of November 1951, "did wilfully, feloniously and of their malice aforethought kill and murder Selacius Klein, against the peace of this State, the government and the dignity of the same."
Answering a bill of particulars, the State used practically the same statutory phraseology employed in the indictment but added "in the commission of a robbery."
The locale of the crime and some of the surrounding circumstances, according to the defendants' version, were not too pleasant.
Klein was the General Superior of the Order of Brothers of the Poor of St. Francis. He was 71 years of age and came to Hoboken with three other brothers of the Order in the early afternoon of November 8, 1951. They went to St. Mary's Hospital around 3 P.M. and were there a short while, when Klein left and went to the public toilet in Church Square Park, which is diagonally across the street from the hospital.
When he entered, both defendants were there. Greely struck him in the mouth with his hand, describing it as "a light slap in the jaw." The deceased left but returned shortly. Deady then "grabbed him by the arms" and Greely "reached into the pockets of his pants and took some money."
Both defendants denied the victim fell, but a witness for the State who entered shortly thereafter and saw Klein lying
on the floor described him as "apparently sleeping." The money taken from him amounted to $18, which admittedly was divided between the two defendants.
Klein recovered at least sufficiently to permit his leaving the place, as he reurned to St. Mary's Hospital and rejoined his companions. His trousers were torn and he borrowed a needle and thread to mend them. The four brothers left St. Mary's Hospital around 5 P.M. and went to St. Francis Hospital in Jersey City to keep a dinner engagement. It was then noticed Klein had suffered an injury to his lip, and he was treated at the hospital clinic.
After dinner one of the brothers observed Klein looked rather sick and was "slumped over in his chair a little bit." He became very ill around 7 P.M. and lapsed into unconsciousness at 9 P.M. He died at 10:25 on the following Saturday morning without ever having regained consciousness.
There was evidence that the death occurred as the result of injuries inflicted during the robbery, of which more hereafter.
The trial court instructed the jury in its charge it should not consider murder in the second degree or manslaughter; that the murder involved was perpetrated in the commission of robbery and was therefore murder in the first degree. The jury was limited in returning a verdict of guilty of murder in the first degree, which it was instructed would carry with it the death penalty unless life imprisonment were recommended, or a verdict of acquittal. No instructions were given as to the statutory obligations of designating by its verdict the degree of murder on which it had decided.
The jury returned a verdict of "guilty as charged, with a recommendation of life imprisonment."
Both defendants appeal, presenting the question of the propriety of the verdict so returned, and the inquiry is whether or not error was committed in the court's accepting a verdict from the jury of "guilty as charged, with a recommendation of life imprisonment."
The applicable statute is N.J.S. 2 A:113-2:
"Murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which is committed in perpetrating or attempting to perpetrate arson, burglary, kidnapping, rape, robbery or sodomy, is murder in the first degree. Any other kind of murder is murder in the second degree. A jury finding a person guilty of murder ...