For affirmance -- Chief Justice Hughes and Justice Mountain, Pashman, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the court was delivered by Pashman, J.
Defendant Robert Zarinsky was convicted by a jury of the first degree murder of Rosemary Calandriello. He received the mandatory sentence of life imprisonment. N.J.S.A. 2A:113-4; State v. Funicello, 60 N.J. 60 (1972), cert. den. sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972). Defendant's motion for a new trial was denied. The Appellate Division affirmed his conviction, rejecting the numerous grounds of appeal advanced by defendant. State v. Zarinsky, 143 N.J. Super. 35 (App. Div. 1976). Our grant of certification was limited to the issue of whether the defendant's prosecution was barred by the statute of limitations. 72 N.J. 459 (1976).
Due to the limited scope of this appeal, it is unnecessary that we recapitulate all of the details of the crime and investigation which are set forth in the opinion below. See 143 N.J. Super. at 41-48. The following facts are relevant to our present inquiry. At approximately 6:00 P.M. on August 25, 1969, seventeen year old Rosemary Calandriello left her home on Center Avenue in Atlantic Highlands, New Jersey, to buy milk and ice pops at two neighborhood stores. She took $2.00 with her and indicated that she would be right back. A neighbor saw her walking down Center Avenue toward the center of town. Another neighbor, Mrs. Vaughn, saw a stocky man slouched in an old, black and white Ford automobile near a bowling alley on Center Avenue. Shortly thereafter, four boys who were schoolmates of Rosemary saw her riding with a stocky man in a Ford Galaxie with a black convertible top. That man was later identified as defendant. Rosemary Calandriello has not been seen or heard from since, and her body has never been recovered. She was promptly reported as missing to the police who immediately started an investigation.
On August 26 the four boys who had seen Rosemary with defendant furnished the police with a description of him and of the vehicle he was driving. The police later learned that two days after Rosemary's disappearance, a man fitting defendant's description had attempted to lure two twelve year old girls into his car in the nearby town of Leonardo. One of the girls had noted the license plate number, CTI 109, of the car from which the offer of a ride had come. Further investigation also revealed that a man fitting defendant's description had attempted to lure two fourteen year old girls into his car two weeks earlier at the same bowling alley on Center Avenue.
A check of the license plate number indicated that the car was registered to defendant's father, with whom defendant and his wife lived in Linden, New Jersey. On August 27, 1969, a "John Doe" complaint was signed charging defendant with contributing to the delinquency of Rosemary Calandriello, a minor. In the late evening of August 27, defendant was arrested at his residence in Linden and the automobile was impounded. The next morning the car was identified by the four boys. Later that day a lineup was held in which the four girls viewed and identified defendant.
The initial complaint against Zarinsky was amended on August 28 to charge him with abduction of Rosemary for an immoral purpose. N.J.S.A. 2A:86-3.*fn1 In June 1970, the complaint charging abduction of Rosemary was dismissed by the trial court on defendant's motion pursuant to R. 3:25-3 for unnecessary delay in presenting the charge to a grand
jury. Although no criminal charges were pending after June 1970, the investigation of the defendant continued. On February 20, 1975 Zarinsky was indicted for the murder of Rosemary Calandriello. His conviction was based largely on circumstantial evidence. The only issue we address is whether the indictment, returned some five and a half years after the criminal event, was barred by the statute of limitations.
Prior to State v. Funicello, 60 N.J. 60 (1972), cert. den. sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972), the death penalty was mandatory for one convicted by a jury of first degree murder, unless the jury recommended life imprisonment. Our murder statute provides:
Every person convicted of murder in the first degree, his aiders, abettors, counselors and procurers, shall suffer death unless the jury shall by its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend life imprisonment, in which case this and no greater punishment shall be imposed.
[ N.J.S.A. 2A:113-4, L. 1898, c. 235 § 108, am. by L. 1916, c. 270, § 1, L. 1919, c. 134 § 1.]
As a result of Funicello, supra, the present rule in New Jersey is that conviction of murder in the first degree carries the penalty of mandatory life imprisonment. Before that decision, N.J.S.A. 2A:113-3 had prohibited a death sentence where a defendant pleaded non vult to a murder indictment. However, where a defendant insisted on a trial by jury and was convicted, N.J.S.A. 2A:113-4 required the death sentence unless the jury recommended life imprisonment. Funicello held that the New Jersey scheme ran afoul of the principles set forth in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), where the death penalty provision in the federal kidnapping statute was declared invalid. It too had provided for a death sentence only upon a conviction by a jury, but differed from the New Jersey scheme in that a death sentence was only imposed upon the recommendation of the jury. Nevertheless, the death penalty provision of the kidnapping statute was
struck down as an unconstitutional burden on the assertion of the accused's Fifth Amendment right not to plead guilty and his Sixth Amendment right to demand a jury trial. But cf. State v. Corbitt, 74 N.J. 379 (1977). Thus, although the death penalty has not been ruled unconstitutional per se, it has effectively ceased to exist in New Jersey. To date, no statute implementing capital punishment in this State has been enacted.
The relevant statute of limitations, N.J.S.A. 2A:159-2, L. 1898, c. 237 § 152, am. by L. 1953, c. 204 § 1, reads as follows:
Except as otherwise expressly provided by law no person shall be prosecuted, tried or punished for any offense not punishable with death, unless the indictment therefor shall be found within five years from the time of committing the offense or incurring the fine or forfeiture. This section shall not apply to any person fleeing from justice.
Since the only crimes not covered by the statute are characterized as those punishable with death, defendant argues that the non-enforceability of the death penalty in New Jersey renders all crimes subject to the limitations period. It is undisputed that defendant's indictment for murder ...