For affirmance -- Justices Francis, Proctor, Hall, Schettino and Haneman. For modification -- Chief Justice Weintraub, and Justice Jacobs. The opinion of the court was delivered by Haneman, J. Hall, J. (concurring). Weintraub, C.J. (dissenting). Mr. Justice Jacobs joins in this dissent. Hall, J., concurring in result.
The appeal herein concerns the denial by the Union County Court of defendant's motion for correction of an allegedly illegal sentence.
Defendant was indicted on two counts of murder. Each of the two counts concerned a separate and distinct homicide. In that connection the County Court stated:
"One murder * * * involved the killing of a woman by knocking her to the ground and running a heavy automobile back and forth over her body. The other murder occurred some minutes later when defendant strangled another woman with a man's trouser belt. Thus there were two distinct acts of killing, by different methods, separated by some period of time." State v. Maxey, 77 N.J. Super. 397 (Cty. Ct. 1962).
On each count the trial jury found the defendant guilty of first degree murder and recommended life imprisonment.
At the time of sentence the judge stated:
"On Indictment No. 275, the May Session, 1960 Term, Count 1, Joseph William Maxey, you are sentenced to imprisonment in the State Prison for the remainder of your natural life. Credit for time served in jail is 157 days * * *.
On Count 2 of the same indictment, Joseph William Maxey, you are sentenced to imprisonment in the State Prison for the remainder of your natural life and insofar as possible this sentence shall be consecutive to the sentence on Count 1."
The judgment of conviction reads:
"ORDERED AND ADJUDGED that the defendant be and he is sentenced on Count No. 1 to State Prison for the remainder of his natural life, credit for 157 days spent in jail. Sentence on Count No. 2 to State Prison for the remainder of his natural life. Sentence to run consecutively with Count No. 1."
Defendant moved before the County Court for a correction of the sentence. He sought thereby to eliminate the provision for consecutive sentences, on the ground that the court was without power to impose successive life sentences. The motion was denied, State v. Maxey, supra. Defendant appeals directly to this court under R.R. 1:2-1(c).
Defendant reasons that a life sentence leaves no time in which to serve other sentences consecutive to it and that consecutive life sentences are therefore illegal. He also urges that the delegation of sentencing discretion in a first degree murder case is vested solely in the jury and that the judge exercises only the function of imposing the sentence as directed by the verdict of the jury. It follows, he says, that the judge is without power to append to a jury verdict, which recommends life imprisonment for each of two murders, a provision making one of the sentences of life imprisonment consecutive to the other.
The judicial power to impose consecutive sentences in this State is not founded upon statute but rather upon our common law, derived from the common law of England.
State v. Mahaney, 73 N.J.L. 53 (Sup. Ct. 1905), affirmed 74 N.J.L. 849 (E. & A. 1907).
In England, prior to the American Revolution, the judge's power to impose successive sentences was limited to misdemeanors, for the conviction of which crimes the sentence rested in the judicial discretion. Rex v. Wilkes, 4 Burr 2527, 2577, 19 How. St. Tr. 1133, 1134 (K.B. 1770). The judge had no such power in imposing sentences for the commission of felonies because the mandatory penalty for felonies was death, and there was, therefore, no rational point, once having sentenced a man to death, to direct that he be hanged a second time. Rex v. Albury, 1 K.B. 680 (1951).*fn1 The misdemeanor-felony distinction is inapplicable in New Jersey where crimes, if categorized at all, are designated high misdemeanors or misdemeanors, Jackson v. State, 49 N.J.L. 252 (Sup. Ct. 1887), affirmed 50 N.J.L. 175 (E. & A. 1887), Brown v. State, 62 N.J.L. 666 (E. & A. 1898); State v. Wilson, 79 N.J.L. 241 (Sup. Ct. 1910), affirmed 80 N.J.L. 467 (E. & A. 1910), none of which carry a mandatory death penalty. The reason which undergirded the English common law prohibition against the imposition of consecutive sentences for the commission of felonies becomes meaningless when applied to our crimes which provide penalties by imprisonment for terms of years.
As far as is ascertainable, State v. Mahaney, supra, represents the only instance where the inherent power of the courts to impose successive sentences for the commission of any of our statutory crimes punishable by imprisonment for a term of years, was questioned. And Mahaney vigorously rejected the attack on such power, recognizing that the doctrine rested on common sense as well as authority, and had
been followed in this State since its birth. Mahaney, supra, 73 N.J.L., at p. 56. Consequently, our courts have the discretion and power to impose consecutive sentences for terms of years. State v. Mahaney, supra, at p. 55.
If a life sentence meant that a man must be imprisoned for life we might find merit in defendant's argument which echoes that employed against successive sentences for felonies punishable by death, i.e., a man has but one life and it would be an anomaly to commit him for two successive lives.
But realistically a "life sentence" is not what the words connote. The responsibility to determine in the first instance whether punishment for first degree murder shall be life imprisonment or death is vested in the jury. The Legislature, however, has placed the responsibility of deciding how a life sentence shall be executed in the Parole Board. State v. White, 27 N.J. 158, 177 (1958). Because N.J.S.A. 30:4-123.11 provides:
"Any prisoner serving a sentence of life shall be eligible for consideration for release on parole after having served twenty-five years of his sentence, less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments,"
a prisoner sentenced to life imprisonment and receiving maximum commutation time credit, is eligible for and may be paroled in approximately 14 years. See Wachenfeld, J. dissenting in State v. White, 27 N.J., at p. 191 (1958). The practical result is that a single life sentence is modified into an indeterminate sentence with a possible minimum of approximately 14 years and a maximum of life.
Under the original 1948 parole statute, L. 1948, c. 84, N.J.S.A. 30:4-123.1 et seq., where a prisoner was serving consecutive sentences, he was eligible for parole consideration upon the expiration of the minimum of his first sentence. If parole were then granted, he was not released from prison but was deemed to have commenced service of his second sentence simultaneously with the service of the balance of the maximum of his first sentence. He then had the
dual status of a "cell parolee" on his first sentence and a prisoner serving time on his second sentence. See In re Fitzpatrick, 9 N.J. Super. 511 (Cty. Ct. 1950), affirmed 14 N.J. Super. 213 (App. Div. 1951), approved in In re Domako, 9 N.J. 443, 444 (1952), cert. denied 343 U.S. 987, 72 S. Ct. 1085, 96 L. Ed. 1374 (1952). Subsequent statutory amendments which permitted aggregation of the minima of consecutive sentences for determination of eligibility for parole dealt only with sentences involving terms of years, leaving untouched the application of the above outlined procedures to consecutive life sentences. Thus it is not legally impossible for a prisoner to serve "life sentences" consecutively and we find no merit to defendant's contentions on that point. See Ex Parte Pedrini, 33 Cal. 2 d 876, 206 P. 2 d 699 (Sup. Ct. 1949), McCoy v. Severson, 118 Utah 502, 222 P. 2 d 1058 (Sup. Ct. 1950), People v. Kostal, 159 Cal. App. 2 d 444, 323 P. 2 d 1020 (D. Ct. App. 1958).
We now proceed to defendant's second point. It must be conceded that in a case involving one instance of first degree murder the jurors determine whether the defendant shall be sentenced to life or to capital punishment, and the judge performs only the function of pronouncing that sentence and entering judgment. See In re Ernst, 37 N.J. 24 (1962). It is also true that in their deliberations as to whether a defendant shall suffer capital punishment or life imprisonment, the jury is required to conceive of life imprisonment as imprisonment for life and must ignore the possibility that the defendant may be paroled if a life sentence is imposed upon him. State v. White, 27 N.J. 158 (1958). The reason for this is obvious. Since the jury must make the basic decision as to whether the defendant lives or dies, it is felt that the defendant should not be prejudiced by the jury's regarding the alternative to death to be something less than life imprisonment. State v. White, supra, at p. 177. None of this is to say, however, that a judge, where life imprisonment has been recommended by the jury for each of two distinct homicides, is without power to direct that the terms
shall be served consecutively, thereby affecting the length of time the prisoner must remain in prison before he may be released on parole. Rather, this means that the court may not deviate from the jury's direction as to the nature of punishment for each conviction.
As above noted, in cases where a defendant is convicted of several offenses punishable by terms of years the judge has the power to decide whether to impose consecutive sentences. The power of the court to make such sentences cumulative exists from necessity; for, otherwise, a person might be convicted at the same term of court for several distinct offenses and the court have power to inflict punishment for only one. See State v. Mahaney, supra, 15 Am. Jur., Criminal Law, § 464.
The purposes of sanctions in the criminal process are fourfold: retribution, deterrence, restraint, and rehabilitation. Commonwealth v. Elliott, 371 Pa. 70, 89 A. 2 d 782 (Sup. Ct. 1952). Although he is advised to take all four purposes into account when imposing sentence, the sentencing judge, because of his temporal location in the correctional process, is mainly concerned with the first two elements, namely, vindication of the wrong to society, and deterrence of others from committing similar criminal offenses. This is not to say that in the imposition of sentence, the judge is not to give consideration to restraint and rehabilitation. Under our present rules, the presentence report ranges over the prisoner's entire life and appraises it against his criminal offense as an aid to the judge in making the punishment fit the offender as well as the crime. This adjustment necessarily takes into account the factors of restraint and rehabilitation. Because only the passage of time in prison can reveal whether a particular prisoner has become rehabilitated or whether his return to society is a risk worth taking, the parole board is particularly well situated to make those determinations, although it too considers all four elements.
The necessary effect of the imposition of consecutive instead of concurrent sentences is that ...