State v. Mount

Burling, J.

(concurring). The law of this State has been firmly settled that the only issue for trial in a prosecution for murder is the guilt or innocence of the accused; that only proof relevant to that issue is admissible. State v. Wise, 19 N. J. 59 (1955); State v. Cordasco, 2 N. J. 189 (1949); State v. Molnar, 133 N. J. L. 327 (E. & A. 1945); State v. Favorito, 115 N. J. L. 197 (E. & A. 1935); State v. Barth, 114 N. J. L. 112 (E. & A. 1935); State v. James, 96 N. J. L. 132 (E. & A. 1921); State v. Maioni, 78 N. J. L. 339 (E. & A. 1909).

*221 Eour years ago Mr. Justice Waehenfeld held in the Wise case:

“The highest tribunal of this State, despite an expressed minority view, has, from the time of the enactment of what is now N. J. S. 2A :113-4, consistently interpreted the phrase ‘all the evidence’ to mean only evidence bearing upon the defendant’s guilt or innocence. This interpretation of the statute follows not only the obvious legislative intent to avoid speculation on the part of the jury and to narrow the issues for their deliberation, but accords with common sense in making basic justice more certain in its administration.

Were the rule otherwise, it is quite evident that first-degree murder trials might well become hopelessly mired in autobiographical sketches and psycho-sociological debates, submerging the true issue of guilt or innocence.

We doubt if the end result would be productive of justice, as the jury would be further burdened by emotional equations in their deliberations, created by testimony totally disassociated from the crime itself, relating to unfortunate incidents and others encountered by most mortals in the normal span of life.” (19 N. J., at page 106)

The majority indicate that the California system of a double hearing, one to determine guilt and a separate one to determine punishment, is “best calculated to protect the interests of both the State and the defendant,” but that such a course is a legislative one. I am in agreement that the California procedure is preferable to that currently employed in New Jersey. But, in the absence of the legislation required to adopt that procedure, I would not depart from the course charted by the previously cited cases in this jurisdiction. So long as guilt and punishment axe determined in the same proceeding, the evils which attend the presentation of proofs of the general background of the defendant far outweigh its advantages in the administration of the criminal law, which must ever strike a balance between fairness to the accused and the protection of society.

In Mr. Justice Erancis’ concurring opinion in State v. White, 27 N. J. 158, 182 (1958), relied upon by the majority here, it was said:

“A capital case is the only one in which, after a finding of guilt, the jurors sentence the defendant. They are told that if they return a verdict of murder in the first degree, the death penalty is manda *222 tory, but that if they recommend imprisonment for life ‘no greater punishment shall be imposed.’ N. J. S. 2A: 113-4. In dealing with every other type of criminal offense, a judge fixes the punishment (except in a few instances where the Legislature has established a mandatory minimum penalty). However, in no instance can a judge, no matter how long his experience in administering the criminal law or how vast his knowledge of human nature, sentence a defendant without first obtaining a pre-sentence report from the probation department of the county involved. R. R. 3:7-10(6). Such reports are prepared by men trained in the field of criminal responsibility. They range over the entire life of the offender — his religious training, education, environment, family life, work habits, medical history, if any, and the like — in an endeavor to bring to the mind of the court all of the elements pertinent to the degree of punishment and potentiality for rehabilitation. And if either the probation department or the judge feels that a psychiatric examination is desirable or may be helpful, it is ordered.” (27 N. J., at page 183)

Pre-sentence reports do indeed range over the entire life of the offender — and so must the course of the proofs in a homicide prosecution if evidence of the “general background” of the defendant is admissible solely because of its relevancy to punishment. The inevitable result of such a course is the projection of myriad factual disputes which are not only collateral and irrelevant to the issue of guilt, but which tend to confuse and confound the jury in its determination of guilt. See Hayden, “Criminal Law and Procedure,” 13 Rutgers L. Rev. 105 , 125, 126 (1958).

Here the defendant sought to introduce general background evidence which, as stated by counsel in his brief, related to “the defendant’s early life, exposure to a broken home, lack of schooling or religious training and such otheT matters pertinent to his antecedence.” Defendant further requested and was denied a charge reading in part: “I do charge

you that you may consider the defendant’s age, mental capacity, human passions or weaknesses, in determining whether you shall recommend life imprisonment, if you find the defendant guilty of murder in the first degree.” (Emphasis supplied)

It is apparent that defendant was attempting to open the door with respect to proofs relating to his past life, *223 including, but not limited to, the fact that he came from a broken home and was at one time placed in an orphanage.

It is the duty of this court to lay down general principles of law, universal in their application, and sufficiently certain in scope so as to provide a guide for conduct.

It is said that evidence relevant to punishment should be kept within "reasonable bounds.” This standard has sufficient vagueness to insure that we will be plagued with the problem for some time to come.

When the issue is life or death, the scope of relevant proof is assuredly broad. Does the standard of reasonable bounds import the notion that some evidence, although relevant and not unduly cumulative, can nevertheless be excluded in the discretion of the trial court? If not, then the reasonable bounds referred to are as broad as the issue to which the proofs are addressed.

Presumably the evidence offered must conform to the rules of law regarding the admissibility of evidence, although this is not so in a pre-sentence investigation report where patent hearsay is frequently incorporated.

One of the problems which must be considered in the determination of whether the defendant can introduce proofs in mitigation of punishment is: can the State introduce countervailing proofs in aggravation of the punishment? Surely it cannot be suggested that the truth in relation to the question of punishment travels on a one-way street. Eor instance, the California statute cited by the majority, Deering's Penal Code of California, § 190.1 (1957 Pocket Supplement), allows the State to introduce facts in aggravation of the penalty, as well as the defendant to mitigate punishment.

In Commonwealth v. Simmons, 361 Pa. 391 , 65 A. 2d 353 (Sup. Ct. 1949), certiorari denied, 338 U. S. 862 , 70 S. Ct. 96 , 94 L. Ed. 528 (1949), cited by the majority, it is said:

“The court, over objection, admitted in evidence the official records of defendant’s previous criminal offenses, — the conspiracy to rob in Lancaster County and the participation in a robbery in Dauphin *224 County. These records were admissible in order to aid the jury in its function of fixing the penalty if they found the crime to be one of murder in the first degree; evidence of former convictions has been accepted for that purpose ever since the passage of the Act of May 14, 1925, P. L. 759; Commonwealth v. Parker, 294 Pa. 144 , 143 A. 904 ; Commonwealth v. Williams, 307 Pa. 134 , 160 A. 602 ; Commonwealth v. Harris, 314 Pa. 81 , 171 A. 279 ; Commonwealth v. Holley, 358 Pa. 296 , 56 A. 2d 546 .” ( 65 A. 2d, at page 358 .)

See also Commonwealth v. Parker, 294 Pa. 144 , 143 A. 904 (Sup. Ct. 1928). If evidence of previous conviction of crime, although relevant to punishment, be excluded because it is too prejudicial to the issue of guilt where the defendant does not take the stand, see e. g., Knowlton, “Problems of Jury Discretion in Capital Cases ” 101 U. of Pa. L. Rev. 1009, 1111-1116 et seq. (1953), the State is put at the decided disadvantage of having the defendant select witnesses who would paint a glowing picture of his virtues, while the State could not show that the defendant had been previously convicted of crime — no matter how heinous the offense.

Under the standard employed by the majority the resolution of these questions must await future determination in capital cases. In this area of the law, above all, the law ought not to be in an unsettled state.

Eor all of the foregoing reasons I would adhere to the previously settled view that evidence relevant solely to the question of punishment is inadmissible in a prosecution for homicide. The orderly and practical administration of criminal justice requires that the problems herein be settled by comprehensive legislative and not piecemeal judicial action.

I concur in the result reached by the majority on the other points specifically raised by the appellant on this appeal, and accordingly vote to reverse the judgment from which the appeal is taken and to remand the cause for a new trial in accordance with the views expressed in this opinion.