For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
We heretofore reversed a judgment imposing a death sentence upon defendant and ordered a new trial. State v. Mathis, 47 N.J. 455 (1966). Upon the retrial, defendant was again convicted of murder in the first degree and the jury not having recommended life imprisonment, he was again sentenced to die. His appeal comes directly to us. R.R. 1:2-1(c).
The facts are fully set forth in our opinion on the first appeal. There was no significant departure therefrom on the retrial, except that defendant did not testify and submitted a request to charge with respect to his silence which the trial court delivered to the jury.
A number of issues are projected in the brief filed by assigned counsel and in a further memorandum filed by defendant himself. We see no issue warranting discussion other than a point tendered at argument which we accepted and as to which a further brief was filed. That issue, suggested by cases then before the United States Supreme Court and since decided, Witherspoon v. State of Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2 d 776 (June 3, 1968), and Bumper v. State of North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2 d 797 (June 3, 1968), is whether the right to a fair jury was violated because veniremen were excused for cause on the basis of their position with respect to capital punishment.
In Witherspoon the State statute, Ill. Rev. Stat. 1959, c. 38, § 743, provided that cause for challenge existed in a murder case if a juror shall "state that he has conscientious
scruples against capital punishment, or that he is opposed to the same." As construed, the statute authorized exclusion of a juror who "might hesitate to return a verdict inflicting [death]" and in fact at the trial there involved "the prosecution eliminated nearly half the venire of prospective jurors by challenging, under the authority of this statute, any venireman who expressed qualms about capital punishment." Of the 47 veniremen excused on that account, only 5 "explicitly stated that under no circumstances would they vote to impose capital punishment." 391 U.S., at p. 514, 88 S. Ct., at p. 1773, 20 L. Ed. 2 d, at p. 780. Although the Court held that on the basis of what was before it or could be judicially noticed, a jury thus selected could not be said to be "an unrepresentative jury on the issue of guilt" (88 S. Ct., at p. 1775), such a jury nonetheless "fell woefully short of that impartiality" to which a defendant is constitutionally entitled on the question whether the punishment should be death or life imprisonment (88 S. Ct., at p. 1775).
As we understand Witherspoon, it holds that, at least for the time being,*fn1 the State is entitled to a jury which is "neutral" on the subject of penalty, and to that end may challenge for cause a juror who "would not even consider returning a verdict of death" (88 S. Ct., at p. 1776), but that a jury is not representative of the community and hence is not impartial if "it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples
against its infliction" (88 S. Ct. 1777). In other words, we read Witherspoon to recognize that the State is entitled to jurors who are impartial as to punishment, but it holds that a juror is impartial even though he has a bias against the State upon that topic, provided his bias is not so strong as to preclude him from considering the issue of punishment. Although a lesser bias might constitute "cause" if it ran against a defendant ( i.e., racial, religious, or ethnic prejudice), the bias here involved is deemed to be logically relevant to the question whether the death penalty should be imposed in a given case and hence a jury would be unrepresentative of the community conscience if there were excluded all who would have a distaste for capital punishment. But the State is entitled to "a jury capable of imposing the death penalty" (88 S. Ct., at p. 1776; emphasis added).
Our cases define cause in terms agreeable to Witherspoon. Mere opposition to the death penalty, whether it arises from a religious or conscientious scruple or any other source, does not constitute cause for challenge. Rather it must appear that the prospective juror is unable to return a death sentence no matter what may be the facts of the case. Thus in State v. Juliano, 103 N.J.L. 663 (E. & A. 1927), the court said (pp. 670-671):
"The next point raised in sequence is that the court erroneously sustained the challenge made by the state to jurors whose scruples against capital punishment precluded their finding a verdict without recommendation for life imprisonment. * * * It was the right of the state to have jurors who would receive this contention with open mind, and when the jurors, upon their examination, disclosed that this phase of the case could not be so submitted to them they were obviously disqualified to pass upon one of the phases of the evidence as to which they might or might not exercise the clemency contemplated by the statute. If sworn as jurors their scruples would shut out ...