For affirmance -- Chief Justice Hughes and Justices Sullivan, Pashman and Handler. For modification -- Justices Clifford and Schreiber. Clifford and Schreiber, JJ., dissenting.
The judgment is affirmed substantially for the reasons expressed in the opinion of the Appellate Division.
CLIFFORD and SCHREIBER, JJ., dissenting. The Court granted certification, 73 N.J. 39 (1976), limited to the narrow issue of whether N.J.S.A. 2A:151-5 should be interpreted to include the crime of manslaughter. That statute provides for an enhanced sentence to be imposed on one convicted of certain enumerated crimes committed while armed. Absent -- and conspicuously so -- from that extensive list of those crimes is manslaughter. In holding that this defendant, who was convicted of manslaughter while armed, may be sentenced to an additional term for the armed feature, the Court not only effectively discards the established interpretive principle that penal statutes should be strictly construed, State v. Meinken, 10 N.J. 348, 352 (1952); Neeld v. Giroux, 24 N.J. 224, 229 (1957); State v. Edwards, 28 N.J. 292, 298 (1958); State v. Carbone, 38 N.J. 19, 24 (1962); see generally 3 Sutherland, Statutory Construction, § 59.03 at 6-8 (Sands 4th ed. 1974), but also misperceives the legislative intent, pays scant heed to the significant statutory history, and, along the way, contributes a generous dollop of revisionism to the chronicles of the common law.
The factual setting of the case is uncomplicated. The homicide occurred about midnight on March 23, 1974, when Eunice Lucas and John Jenkins, who had been living together, quarreled and began "tussling" over a gun which somehow discharged, fatally wounding Eunice. The trial court, having dismissed a charge of first degree murder at the conclusion of the State's case, charged the jury on second degree murder and voluntary and involuntary manslaughter. The jury acquitted the defendant of murder in the second degree and
returned a verdict of guilty of manslaughter while armed. Defendant was sentenced to 6 to 9 years for manslaughter and to 2 to 3 years for being armed, the sentences to run concurrently. The Appellate Division affirmed.
At the outset we focus on the wording of the statute. N.J.S.A. 2A:151-5 reads as follows:
Any person who commits or attempts to commit an assault, robbery, larceny, burglary, breaking and entering, rape murder, mayhem, arson, abduction, extortion, kidnapping, sodomy or treason, or who is a fugitive from justice, when armed with or having in his possession any firearm * * * shall, in addition to the punishment provided for the crime, be punished on a first conviction by imprisonment for not less than one nor more than 10 years * * *.
The enactment may be examined in vain for any reference whatsoever to manslaughter. Notwithstanding this omission, the Appellate Division, relying on State v. Quinones, 140 N.J. Super. 237 (App. Div. 1976), reasoned that the Legislature intended that the word "murder" in this context should be used in its common law sense and concluded that at common law murder encompassed manslaughter. The majority approved that reasoning, having in this case and Quinones, also decided this day, affirmed substantially for the reasons stated in the opinions below. State v. Quinones, 75 N.J. 391 (1978).
Initially we note that the rather rudimentary principle of statutory construction to which we have heretofore alluded, namely, that penal statutes should be strictly construed, leads directly to a result opposite from that reached by the Court. The plain, unambiguous statutory language refers to murder, not manslaughter. In the absence of some contrary legislative history or other valid reason, we should give due deference to the Legislature's choice of words. Hoffman v. Hock, 8 N.J. 397, 409 (1952); 2A Sutherland, Statutory Construction, § 46.01 at 48 (Sands 4th ed. 1974).
Were we inclined to look beyond the words of the statute, which we are hesitant to do in construing such a straight-forward,
clearly worded criminal enactment, we nevertheless would still be led to reverse. When initially enacted in 1927 the statute did not include murder. Additional penalties for being armed were imposed only for the attempt to commit or the commission of an assault, robbery, larceny, burglary or breaking and entering. L. 1927, c. 321, § 2. Two subsequent amendments expanded the list of weapons to be included in the meaning of "armed." L. 1959, c. 148, § 1; L. 1963, c. 160, § 1. In 1966 the list of crimes was enlarged to add "* * * rape, murder, mayhem, arson, abduction, extortion, kidnapping, sodomy or treason * * *." L. 1966, c. 60, § 4. At that time it was well-settled ...