On appeal from the Camden County Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendant was convicted of murder in the first degree. The jury did not recommend life imprisonment and accordingly the death sentence was imposed. N.J.S. 2 A:113-4. Defendant appeals directly to this court pursuant to Art. VI, § 5, par. 1 of the Constitution and R.R. 1:2-1(c).
Defendant contends the verdict was against the weight of the evidence as to the degree of guilt. Specifically he urges the verdict could not properly exceed murder in the second degree.
For some time defendant had been seeing the victim, Joan Connor, age 17. She was a baby sitter for Mr. and Mrs. Lawrence Linden at their home in Camden, New Jersey. At about the beginning of March 1959, apparently in the belief that defendant evidenced an interest in Mrs. Linden, Joan informed defendant she no longer wished to see him. On March 5 defendant appeared at the Linden
home and talked with Joan. An argument developed, and defendant struck Joan on the head with a soda bottle, inflicting an open wound. Defendant was on parole, and fearing a return to confinement at Bordentown, he fled to the home of a friend, Robert E. Lee, in Newark. He sought to have withdrawn the complaint for assault and battery made by Joan's father, and, we gather, was informed by someone that Linden stood in the way of that solution.
On the evening of March 14 defendant and Lee drove to Camden. According to his confessions, defendant's purpose was to kill Joan and Linden. He had dyed his hair a few days before. He carried a .32-calibre revolver. He visited the home of a Mrs. Brennan, a friend and neighbor of his family, and while there stole from her a P-38 automatic and cartridges. Mrs. Brennan testified defendant said his mission was revenge. Defendant test-fired the P-38 automatic in a vacant lot. He pilfered a pair of license plates and attached them to the car. Armed with two weapons, he sought out Joan and Linden. He visited a tavern, where he failed to find Linden by a narrow time margin. He testified that Joan was at the tavern, although witnesses for the State denied she was. At any rate, at about midnight he went to Linden's home and had Lee ring the doorbell and ask for Joan. A young man, who was to baby-sit to permit Joan and Mrs. Linden to go out, responded and called Joan to the front door. As she appeared, defendant moved into view. The evidence is contradictory at this point. At the trial defendant said he sought to touch her head to examine the wound he had inflicted on March 5, whereupon she slapped him and slammed the door. His confession was to the effect that when Joan saw defendant she asked, "What do you want"? and when he replied "You know what I want," she closed the door "real fast." As the door closed, defendant fired the P-38 automatic. Two slugs passed through the door and hit Joan, killing her in a matter of minutes. Defendant immediately returned to Newark where he was apprehended on March 16.
The nub of defendant's contention is that the jury should have found he fired in response to the rebuff to which he testified, without a purpose or prior plan to murder. The resume which we have set forth above is studded with evidence of a design to kill for revenge, fully conceived, deliberated upon and willfully executed. The jury could readily find the elements of murder in the first degree were established beyond a reasonable doubt. We see no basis for a claim that the verdict was the product of mistake, partiality, prejudice or passion. R.R. 1:5-1(a); State v. Lucas, 30 N.J. 37, 80 (1959).
Defendant charges the prosecution wrongfully contended that but two verdicts were proper under the evidence, to wit, murder in the first degree or acquittal. It is perfectly clear the State advanced that position, and it is equally clear its position was legally untenable. The State of course may press for a first-degree verdict if the proof suffices as it did in this case, but the State may not adopt an "all or nothing" approach when the evidence will legally permit, as it did here, an intermediate result. See State v. Jackson, 227 La. 642, 80 So. 2 d 105, 109 (Sup. Ct. 1955). However, although the prosecution's position was plainly erroneous, the trial court rejected it and properly instructed the jury to consider all of the verdicts legally possible under the evidence.
The controversy originated upon the voir dire of prospective jurors. The prosecutor's questions indicated a juror had two roles, one to determine guilt or innocence, and the other to determine punishment if the finding should be murder in the first degree. When upon defense objection the prosecutor said, "The State's theory in this case is, if this defendant is not guilty of first-degree murder, he should be acquitted," the objection was sustained. The record reads:
"THE COURT: The Court is of the opinion that the question is objectionable. The jury will have two provinces should they determine that the defendant is guilty of murder in the first degree, but they may have more than two provinces. They may have other possibilities that they may consider. You didn't preface the question that should you determine this defendant, from the evidence and from the charge of the Court, is guilty of murder in the first degree --
MR. HEINE: The second part of the question, the second function of this juror will --
THE COURT: That is if they arrive at a verdict of guilty in the first degree.
MR. HEINE: That was my question.
THE COURT: No, you confined it that they had two provinces, guilty of murder in the first degree or not guilty.
MR. HEINE: I didn't say that.
THE COURT: What did you say?
MR. HEINE: I say they have two responsibilities, the first is to determine innocence or guilt of the defendant.
THE COURT: Of any offenses.
THE COURT: In accordance with the Court's charge.
MR. HEINE: Surely, and the second responsibility is that if after arriving at a verdict of guilty of murder in the first degree, then the extent of punishment.
THE COURT: That is different."
In summation, the prosecutor argued:
"Well, ladies and gentlemen, the crux of this case is whether or not the State proved, willful, deliberate and premeditated murder. I say it now, and I will say it again, and I will say it again only because I want to emphasize this proposition: That if we haven't proven a willful, deliberate and premeditated killing, then we ...