Decided: June 20, 1972.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE W. THOMAS, JR., DEFENDANT-APPELLANT
For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None.
[60 NJ Page 589]
On April 10, 1970 Abele Rubino was shot and killed during a hold-up of his liquor store. Thomas was charged by indictment with the felony murder. Upon trial the jury found him guilty of murder in the first degree, and made no recommendation of life imprisonment. Thereupon the trial court pronounced the death sentence, and an appeal was taken directly to this Court. R. 2:2-1(a)(3).
At the trial defendant's guilt was shown beyond any reasonable question. The State's direct case against him was most substantial. He did not testify and the affirmative defense was limited to the production of one very weak alibi witness. The impression given by the record is that the underlying focus of the defense was avoidance of the death penalty.
On appeal the primary grounds for reversal related directly or indirectly to the death penalty issue. However, prior to argument thereof this Court in State v. Funicello, 60 N.J. 60 (1972), responding to the mandate of the United States Supreme Court declared unconstitutional the portion of the New Jersey Homicide Act which provided for imposition of the death penalty. As a result we reduced Thomas' sentence to life imprisonment, giving him credit for the period of imprisonment already served. This action rendered moot many of the asserted reasons for reversal of the judgment of the trial court.
We have examined fully the claims of error that remained after the change of sentence. No merit has been found in any of them. Accordingly, the judgment, as already modified, is affirmed.