On appeal from the Atlantic County Court.
For reversal -- Justices Heher, Oliphant, Burling and Jacobs. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J. Wachenfeld, J. (dissenting).
On May 16, 1956 the respondent was convicted by a jury of murder in the second degree on an indictment returned the prior February 8 charging that on April 17, 1951 he did "willfully, feloniously and of his malice, aforethought kill and murder Margaret Jones, also known as Margaret Brown." Judgment was arrested, before sentence, for want of "jurisdiction of the offense," it was found, because of the supposed bar of the statute of limitations; and the case is here by the State's appeal under Article VI, Section V, paragraph 1(c) of the 1947 Constitution.
The homicide occurred April 17, 1951, in a dwelling in Egg Harbor Township, Atlantic County, New Jersey, where the accused and the victim had cohabited together for eight or nine years. Immediately after the killing, the accused placed the body in a closet of the house, and it was there concealed until its fortuitous discovery in the early Fall of 1955, the accused continuing to live in the house meanwhile. "Murder, though it have no tongue, will speak!" When taken into police custody, on October 19, 1955, he confessed the killing and the concealment of the corpse. There was a brawl, he said, and he belabored the woman over the head with a broom handle. She fell to the floor and there remained, inert; he was soon asleep, and the next morning he found her dead. It was then that he made away with the body. He did not become a fugitive; and it is conceded there was nothing in his conduct that would toll the statute of limitations.
On November 3, 1955 the accused was indicted for manslaughter. The indictment charged a felonious killing of the deceased on April 18, 1950. It was nolle prossed January
10, 1956, as charging a crime barred by the statute of limitations, but in the order to that end Judge Cafiero directed that the "matter again be presented" to the grand jury "for reconsideration at an early date."
N.J.S. 2 A:159-2 provided that "Except as otherwise expressly provided by law no person shall be prosecuted, tried or punished for any offense not punishable with death, unless the indictment therefor shall be found within 2 years from the time of committing the offense * * *." Effective June 30, 1953, the period of limitation was enlarged to five years. L. 1953, c. 204.
The State says that "subsequent" to the return of the manslaughter indictment, it "learned of the true date of the killing, resulting in the present indictment for murder" and trial "on the basis of the homicide having occurred on April 17, 1951, a period of less than five years from the filing and entering of the present indictment." It maintains, and this is acknowledged to be the pivotal issue, that the "case comes within the statutory exclusion normally resulting in a bar to prosecution, because the offense for which the defendant was prosecuted and tried" was "punishable with death." The contention contra is that "murder in the second degree is a distinct and separate offense from murder in the first degree, carrying with it its own punishment," and the "punishment of the crime of second degree murder is barred by the statute of limitations."
The indictment for murder charged an offense "punishable with death" within the concept of N.J.S. 2 A:159-2. Murder at common law is the unlawful killing of one person by another with malice aforethought, either express or implied, "the grand criterion which distinguishes murder from other killing," that is, any evil design in general, the dictate of a wicked, depraved and malignant heart; and it may be either express or implied in law. At common law as a general rule all homicide is malicious, and amounts to murder, unless where justified by the command or permission of the law; excused on the account of accident or self-preservation,
or alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (voluntary) occasioned by some sudden and sufficiently violent provocation. Manslaughter is the unlawful killing of another without malice, either express or implied, which may be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act. And at common law all homicide is presumed to be malicious until the contrary "appeareth upon evidence." 4 Blackstone's Com., sections 224, 229, 233. See also State v. Zellers, 7 N.J.L. 220 (Sup. Ct. 1824); Graves v. State, 45 N.J.L. 347 (E. & A. 1883); State v. Moynihan, 93 N.J.L. 253 (E. & A. 1919); State v. Lederman, 112 N.J.L. 366 (E. & A. 1934); Rex v. Oneby, 2 Ld. Raym. 1485, 92 Eng. Repr. 465 (1898); State v. McGuire, 84 Conn. 470, 80 A. 761, 38 L.R.A., N.S., 1045 (Sup. Ct. Err. 1911); People v. Lytton, 257 N.Y. 310, 178 N.E. 290, 79 A.L.R. 503 (Ct. App. 1931); Com. v. York, 9 Metc. (Mass.) 93 (Sup. Jud. Ct. 1893); 1 Hale, P.C., p. 45 (1680); 1 Hawkins, P.C., c. 31, s. 3 (1787); 3 Inst., pp. 47, 50; and 38 L.R.A., N.S., 1054 et seq., 1092 et seq. 1103; Wharton's Criminal Law (12 th ed.), sec. 419.
Thus, manslaughter is an offense distinct from and not a degree of murder. See State v. White, 41 Iowa 316 (Sup. Ct. 1875). Murder in the second degree is distinguished from manslaughter by the element of malice, essential to the former but not the latter. State v. Guild, 10 N.J.L. 163 (Sup. Ct. 1828). At common law murder is not divided into degrees. A distinction between express and implied malice has been found in the deliberate intent or formed design which is an element of express malice, but at common law there is no such difference in the grade of the offense; it is murder however the given state of mind may be categorized, a condition of mind ordinarily a matter of inference from the circumstances, and the penalty is ...