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August 4, 1980

U. S. ex rel. James V. BRODIE, Petitioner,
Gary J. HILTON, Superintendent, etc., Respondents

The opinion of the court was delivered by: BIUNNO

On January 24, 1977, James V. Brodie was convicted after jury trial of felony murder and the mandatory sentence of life imprisonment was thereupon imposed.

His appeal to the Superior Court, Appellate Division having resulted in an affirmance of that conviction, and a petition for certification having been denied by the Supreme Court of New Jersey, he filed petition here on May 27, 1980 under 28 U.S.C. § 2254.

 His challenge here is that the trial judge denied an express request to charge the jury (and thus allow it to return a verdict) in respect to second-degree murder and manslaughter, the proposition being that as there was only indirect and circumstantial evidence, but no direct evidence, that the victim was placed in fear, there was a factual basis upon which the jury could have found that robbery, the underlying felony for felony murder in this case, had not been proved, and the offense may have been found to be either unlawful entry, larceny, and either second-degree murder or manslaughter.

 As articulated in the brief, the question presented is:

"Whether a State defendant charged with felony-murder is entitled to a trial by jury as to all degrees of criminal homicide, where an essential element of the underlying felony was not supported by any direct evidence."

 All of the events, as well as the trial and conviction, occurred before the revision in 1979 of New Jersey's general criminal law as N.J.S.A. Title 2C, and so what follows is in the light of the law in effect at the time.

 New Jersey is a common law state. The common law of England was expressly continued by Art. 22 of N.J.Const. 1776, by Art. X, sec. 1 of N.J.Const. 1844, and by Art. 11, sec. 1, par. 3 of N.J.Const. 1947.

 Thus, the pattern of criminal law before Title 2C was enacted was essentially a pattern of common law crimes, added to which there was a larger pattern of statutory offenses, some being crimes and others not. Over the years, the labelling of common law and statutory crimes became blurred. The label "felony" largely disappeared from the statute books. Such common law felonies as arson, burglary, larceny, rape, robbery and sodomy, along with other serious statutory offenses as kidnapping, were relabelled as "high misdemeanors" carrying a general penalty of $ 2,000. fine or 7 years' imprisonment or both unless another punishment was specifically provided, N.J.S. 2A:85-6. Most other indictable offenses were labelled "misdemeanors", carrying a general penalty of $ 1,000. fine or 3 years' imprisonment, or both, unless a different punishment was specially provided, N.J.S. 2A:85-7. Lesser non-indictable offenses were categorized as "disorderly conduct" and were generally collected at N.J.S. 2A:107-1 et seq.

 In the case of the common law offenses of murder and manslaughter, these common law labels were retained, and they were not classified as "high misdemeanors", "misdemeanors" or by any other than their common law names.

 There was no statute at all that defined murder or manslaughter; these were and remained common law crimes. N.J.S. 2A:113-2, which designated degrees of murder, and N.J.S. 2A:113-4, which specified the punishment for each degree of murder, did not define murder. Nor did N.J.S. 2A:113-5 do more than specify the punishment for "the crime of manslaughter."

 The focus here is on felony-murder, a statutory addition or supplement to common law murder. The provisions are found in N.J.S. 2A:113-1 which, so far as pertinent here, states that:

" * * * if the death of anyone ensues from the committing or attempting to commit (by any person) (the) crime (of) robbery * * * then such person so killing is guilty of murder."

 Thus, when the fact is that a death "ensues" from the commission of a designated offense, such as robbery, the statute serves to substitute that fact for a showing of "malice", an essential element of common law murder, see State v. Gardner, 51 N.J. 444, 242 A.2d 1 (1968), quoting, in part, Sir James Stephens' Digest of the Common Law.

 The provisions of N.J.S. 2A:113-2 deal with degrees of murder, as noted above. It gathers together, as "murder in the first degree", not only murder perpetrated by poison, or by lying in wait, "or by any other kind of willful, deliberate and premeditated killing," but also murder (as specified by N.J.S. 2A:113-1) "committed in perpetrating .... robbery . . ." Any other kind of murder is murder in the second degree.

 At the times involved here, the N.J. Court Rules, R. 3:7-3(b) provided that:

"It is sufficient in every indictment for murder to charge that the defendant did willfully, feloniously and of his malice aforethought kill and murder the deceased, and in every indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased." (NOTE that the current text of this rule has been amended to refer to revised Title 2C).

 Thus, this ancient, standard and short-form indictment has long been accepted as sufficient to apprise the defendant that he has been charged with "murder", without specifying in itself anything about degrees of murder, or about the method of the murder, or whether the murder charged is as at common law or according to a statute. Those clarifications are left to procedural tools such as bills of particulars or other modes of discovery, to the ...

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