For affirmance -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Schettino. For reversal -- Justice Francis. The opinion of the Court was delivered by Weintraub, C.J. Francis, J. (dissenting).
George Merritt, Jr., and Gail Madden were convicted of murder in the first degree and sentenced to life imprisonment. The Appellate Division reversed the convictions and ordered a new trial. We granted the State's petition for certification. 59 N.J. 287 (1971).
The victim was a police officer, John V. Gleason. He was stationed at the perimeter of an area in Plainfield, N.J., which had just experienced serious racial rioting. The officer sought to arrest one Bobby Lee Williams, who allegedly had attempted to strike some boys with a hammer. As the officer sought to make the arrest, spectators threw sundry missiles at him. In response to some movement by Williams, who still had the hammer, the officer fired his weapon, wounding Williams. Thereupon a mob came at the officer. The officer tried to escape, but after a pursuit involving a considerable distance, he was brought down. Members of the mob inflicted a savage beating which continued until he died.
Twelve persons were indicted for the murder. Eleven were tried together. One was acquitted by order of the trial court; seven were found not guilty by the jury; the two respondents were convicted; and the jury was deadlocked with respect to the remaining defendant.
As will hereinafter be spelled out, the evidence was sufficient to warrant a finding of first degree murder against
both defendants. As to Merritt, there was testimony that he struck the deceased with a meat cleaver, and as to Madden, a woman weighing about 300 pounds, there was testimony from which it could be found she jumped upon and stomped the victim as he lay prostrate on the ground. A finding of such participation in the brutal attack on the deceased would warrant a conviction of murder in the first degree without regard to whether the blows either one inflicted in fact caused death.
But the case went to the jury, not only on the claim of such physical participation in the attack, but also on the premise that each defendant would be equally guilty if the participation consisted of words or conduct encouraging others to inflict the beating. Thus in defining aiding or abetting, the trial court included "all assistance rendered by words, acts, encouragement, support, or presence, actual or constructive, to render assistance, if necessary." It is the charge on aiding or abetting which raises difficult questions in the case, and since we cannot know whether the jury accepted as true the testimony of physical participation referred to above, we cannot say the verdict did not rest upon a finding of such other activity as would come within the aiding or abetting instruction. The charge upon aiding or abetting included instruction upon the liability of conspirators. It was that aspect of the charge which led the Appellate Division to reverse the judgments and order a new trial.
An inquiry into the validity of the instruction upon aiding or abetting the murder of a police officer acting in the execution of his duty necessarily involves a consideration of the constituent elements of that category of murder. We will deal first with that subject, and then with the question whether the aiding or abetting charge had the infirmity the Appellate Division found or some other or further infirmity.
At common law, murder was a killing with "malice aforethought." It is difficult today to know precisely what the term meant throughout the development of the common law. There is authority that malice aforethought, as late as the sixteenth century, meant "a deliberate, premeditated intent to kill formed some time beforehand and that no killing 'on a sudden' even without provocation or on slight provocation was considered murder," a killing "on a sudden" being manslaughter. State v. King, 37 N.J. 285, 299-300 (1962). As King pointed out, the concept of murder changed. Apparently an intent to kill, without a prior design to kill, was later sufficient for "malice aforethought." 2 Burdick, Law of Crime (1946) §§ 448c-450, pp. 164-169.
There were other situations at common law in which such actual malice was not required to support a charge of murder. One category was a killing in the course of the commission of a felony, as to which the intent to commit the felony sufficed even though there was no intent to kill. Another category, and the one with which we are here concerned, was described by Coke in his Institutes as the killing of a magistrate, sheriff, constable or other officer executing a lawful warrant or in the performance of any other official duty. 2 Burdick, Law of Crime (1946) § 451, p. 170, and § 453, pp. 171-73. A killing in those circumstances was, without more, deemed murder, and this because of the need for further protection of such officers when acting in obedience to their official duty and because an attack upon officers thus engaged is an attack upon the institution of justice itself and therefore an attack upon the security of all citizens. Brown v. State, 62 N.J.L. 666, 697-698 (E. & A. 1899); Bullock v. State, 65 N.J.L. 557, 570 (E. & A. 1900).
A like provision as to the killing of officers has appeared in our homicide statutes at least since 1829 (Act of Feb. 17, 1829, § 66, p. 128; Rev. of 1846, § 3, p. 258; L. 1898, c.
235, § 106, p. 824). Our present statute, N.J.S.A. 2A:113-1, defines murder, as follows:
If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act; or if any person kills a judge, magistrate, sheriff, constable or other officer of justice, either civil or criminal, of this state, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty, or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so killing is guilty of murder.
It will be noted that the statute reflects the three categories of common law murder to which we have already referred. As to killings which are not within the category of a killing in the commission of the specified common law felonies and which are not in the category of the killing of an officer, our statute requires proof of an intent to kill or intent to do grievous bodily harm. State v. Gardner, 51 N.J. 444, 456-459 (1968). If the intent is to inflict injury less than serious bodily harm, the offense is involuntary manslaughter.
As to killings in the commission of the specified common law felonies, it is enough for present purposes to say that there need not be an intent to inflict any injury at all. The question is whether an intent to injure is required in the third category -- the killing of an officer in the execution of his office or duty. Here the law is quite obscure. It is clear that there need not be an intent to kill. But the authorities do not call for an intent to do harm of a grievous character, although usually that intent is evident from the nature of the weapon or force applied. That surely was the situation in our cases involving the killing of officers. Brown v. State, supra, 62 N.J.L. 666; Bullock v. State,
supra, 65 N.J.L. 557; State v. Metalski, 116 N.J.L. 543 (E. & A. 1936); State v. Genese, 102 N.J.L. 134 (E. & A. 1925); State v. Sage, 99 N.J.L. 229 (E. & A. 1923); State v. Schilling, 95 N.J.L. 145 (E. & A. 1920). We are satisfied that the total context requires a holding that intent to inflict any injury upon such an officer is all that is required, so that if any force applied with intent to injure does in fact result in death, the offense is murder.
But we cannot say the Legislature intended to make the offense murder if there was no intent to do some physical injury. If the unlawful act, unaccompanied by an intent to do some injury to the officer, does result in his death, the crime would be involuntary manslaughter. See State v. Weisengoff, 85 W. Va. 271, 101 S.E. 450 (Sup. Ct. 1919); Dickby, "Homicides in Resisting Arrest," 18 Corn. L.Q. 373, 377-78 (1933).
We come now to the truly ambiguous event in the statutory history in our State. Until 1965, the killing of an officer in the execution of his duty was murder in the second degree and that had been true since degrees of murder were first introduced by L. 1839, pp. 147-48. Until 1965 murder was in the first degree only if "perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing" or if committed in perpetration or attempt to perpetrate the specified common law felonies already mentioned. All other murder was second degree. In 1965, by c. 212, § 1, there was added to murder in the first degree, a murder:
Thus for the first time since the year 1839, a killing of a police officer, if in the execution of his duty, became another category of capital offenses, that is, punishable by death.
(The killing of the other public officials included in the definition of murder in N.J.S.A. 2A:113-1 remains murder in the second degree.)
The question is whether the 1965 statute should be read to lift into the category of a capital offense every killing of a police officer in the execution of his duty which theretofore was second degree murder punishable by a term of years. More precisely, the question is whether the legislators intended to make punishable by death all of these killings of an officer: (1) where there was an intent to kill; (2) where there was an intent to do grievous bodily harm; (3) where there was an intent to do harm less than grievous bodily harm.
Upon this critical question, there is no history at all within the legislative records. The bill had no statement attached. Nor is there a record of any expression by any member of the Legislature. It is apparent from the discussion hereinabove that the full reach of the murder statute would not have been understood without tracing its antecedents in the common law. The only available legislative history is found in the records of the then Governor who approved the bill. That history persuades us that the amendment must be read to make the murder of a police officer punishable by death only if the killing was intentional.
Prior to the 1965 amendment, as is shown by the foregoing discussion, the fact that the victim was a police officer killed in the execution of his duty had no legal significance in a charge of murder in the first degree. To make such a killing murder in that degree, the same additional facts were required as in the killing of a non-officer. Thus (passing a killing by poison or lying in wait -- categories rarely invoked), the State had to prove the murder of a policeman was a "willful, deliberate and premeditated killing," or was committed in perpetrating or attempting to perpetrate the specified common law felonies. With this introduction, the following facts in the Governor's file are readily understood.
The Prosecutor of Essex County said in a letter to the Governor dated October 14, 1965:
I have had occasion in recent days to examine very carefully our homicide statute as it pertains to the killing of a police officer. That statute, 2 A:113-1, provides that the killing of an officer of justice is murder. Murder under our law is presumed to be murder in the second degree. 2 A:113-2 provides that felony murders and wilful, deliberate and premeditated murders constitute murder in the first degree.
It is my strong feeling that the intentional killing of a police officer whether in the course of a felony or not; whether premeditated or not; should constitute first degree murder, the punishment for which is either death or life imprisonment.
A bill (S. 366) was introduced and passed, and the Governor in his press release dated December 27, 1965 said: "This amendment was first suggested" by the Prosecutor of Essex County.
On December 20, 1965 a citizen wrote to the Governor stating her concern that the amendment then awaiting his signature might go too far and be unrealistic. In part the citizen said:
It seems possible that Sen. Sarcone's new bill would cover situations in which a police officer is accidentally killed. Does it not put a grand jury, a prosecutor's office or a courtroom jury in the position of finding for first degree murder, with no chance or choice to consider any extenuating circumstances there might be? Is it properly worded so that no jury in the future finds itself caught in the throes of an arbitrary law that it cannot in conscience support? Is it just, and will it serve as a deterrent?
The Governor answered, saying:
It is clear that the county prosecutor proposed no more than that the offense be capital if there was an intent to kill. He wanted to relieve the ...