State v. Tansimore

Heher, J.

(dissenting). The jury were instructed that “intoxication wilfully entered upon furnishes no excuse for crime and no defense against the consequences which the law denounces against crime,” and would not “reduce the degree of the crime from the first degree to second degree, unless it appears by a fair preponderance of the evidence that at the time of the shooting the defendant’s mental faculties,'by reason of drunkenness, were so prostrated as to render him incapable of 'forming the specific intent to kill, which is an essential element of murder in the first degree.” Again, the Judge said that “the fact that he was capable of forming a specific intent is the fact that establishes the ingredient necessary to the crime of murder in the first degree.”

I entertain the view that this constitutes a substantial deviation from the principle of the statute defining murder in the first degree. R. S. 2:138-2. Capacity to entertain a design to kill rather than the actual existence of a specific intent to take life in the mind of the accused was thereby laid down as the decisive element of murder in the first degree. Incapacity alone would “reduce” the degree from first to second. Mere mental capability was substituted for the mental operation which is a constituent of murder in the first degree. •

At common law, voluntary drunkenness was never an excuse for crime; and evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, “and merely establishing that his mind was affected by drink, so that he more readily gave way to some violent passion, does not rebut the presumption *541 that a man intends the natural consequences of his acts." Director of Public Prosecutions v. Beard [1920] A. C. 479. Indeed, the early common law regarded voluntary drunkenness as an aggravation of the crime. Co. Litt. 247a. At common law, there is no distinction of degree in murder. Malice, i. e., an intent to do bodily harm, is presumed; and the burden is on the accused to show circumstances of alleviation, excuse, or justification. State v. Zeller, 7 N. J. L. 220 (Sup. Ct. 1924); Brown v. State, 62 N. J. L. 666, 703 (E. & A. 1899); State v. Silverio, 79 N. J. L. 482 (E. & A. 1910); Allen v. United States (1896), 164 U. S. 492 , 17 S. Ct. 154 , 41 L. Ed. 528 . But a killing which constitutes murder at common law or under the statute (B. S. 2:138-2) is presumed to be murder of the second degree, after the presumption of innocence is dissipated by a finding of guilt of a criminal homicide; and the burden is cast upon the State to prove beyond a reasonable doubt the specific intent to take life and the premeditation and deliberation constituting the elements of murder in the first degree. Warner v. State, 56 N. J. L. 686 (E. & A. 1894); Wilson v. State, 60 N. J. L. 171 (E. & 1897); Brown v. State, 62 N. J. L. 666 (E. & A. 1897); State v. Mangano, 77 N. J. L. 544 (E. & A. 1909); State v. Leo, 80 N. J. L. 21 (Sup. Ct. 1910); State v. Kubaszewski, 86 N. J. L. 250 (E. & A. 1914); State v. Cooper, 2 N. J. 540 (1949). A specific intent to take life is not, without more, proof of deliberation and premeditation within the intendment of the statute. State v. Bonofiglio, 67 N. J. L. 239 (E. & A. 1901). It would seem to be axiomatic that there cannot be a lawful conviction of murder in the first degree unless upon the whole evidence these constituents are established beyond- a reasonable doubt.

I am not unmindful of the reasoning of the majority in the Wilson case, supra, with respect to the defense of intoxication. I do not think it takes into account the effect of the statute defining murder of the first degrqe upon the common-law conception of intoxication as a defense. In that case, Mr. Justice Van Syclcel said: “So long as the mind of the criminal is capable of conceiving the purpose to kill, he must be *542 held to the responsibility of one who is sober, and that is the language .of the cases upon this subject.” But a sober man is not chargeable with murder in the first degree unless he had actually formed an intent to take life and had executed the intent with deliberation and premeditation. His ability to “conceive” the purpose to kill is not enough; he must in fact entertain a design to kill. Obviously, mental capability to form an intent to kill and the actual intent are not one and the same. Justice Yan Syckel invoked a Georgia case (Marshall v. State, 59 Ga. 154 ), holding: “To be too drunk to form the intent to kill, the slayer must be too drunk to form the intent to shoot.” This, too, is an arbitrary standard that ignores the principle of the statute. It suggests that the shooting itself is conclusive of the intent to kill; and this, of course, is not the law. State v. Deliso, 75 N. J. L. 808 (E. & A. 1908); State v. Kulaszewski, supra; State v. Lynch, 130 N. J. L. 253 (E. & A. 1943).

Can it be said with any degree of reason and logic that the State has sustained the burden of proof if, upon the evidence adduced either by the State or by the accused, there arises a reasonable doubt as to the existence of the specific intent to take life requisite to murder of the first degree under the statute? Is not the crucial inquiry in this regard the actual existence of the intent to kill at the time of the shooting? This is plainly the rule of the statute; and the application of the common-law conception of intoxication as a defense to crime does not serve the legislative design. In a word, if the evidence as to intoxication raises a reasonable doubt as to the existence of a specific intent to take life, the State has not borne the burden of proving this ingredient of murder in the first degree. Intoxication is not a defense to murder. But it may be shown to negative the existence of the state of mind and the mental operation requisite to murder in the first degree as defined by the statute, just as other circumstances are introducible to that end; and if the evidence in that behalf engenders a reasonable doubt as to the existence of any of the elements of that offense, the burden of proof is not sustained. This is the principle of the Warner case, supra. There, the *543 old Court of Errors and Appeals ruled that an instruction according to the accused the benefit of a reasonable doubt “as' to any fact the State was bound to prove” necessarily involved “the proposition that if there was a reasonable doubt whether drunkenness deprived the defendant of this intent to kill, he could not be convicted of murder in the first degree.” Mr. Justice Reed said: “Design to kill was a fact. A reasonable doubt as to the existence of that fact might spring out of the drunkenness of defendant, or out of any other circumstance or combination of drunkenness with other circum.stances.” The age-old rule of law barring intoxication as a defense to crime does not justify the substitution of bare mental capability for actual intent in the application of the statutory principle.

In the case of State v. Quigley, 135 Me. 435 , 199 A. 269 (1938), cited in support of the conclusion here, there was a conviction of assault, by a shotgun with intent to kill; and the question was whether there was error in the denial of a motion for a directed verdict of not guilty. In holding that the question of intent was one of fact, the court said: “In this century the authorities agree that when in a criminal trial, where intent to do the criminal act charged must be proven, and insanity is not pleaded, but voluntary intoxication whether from alcohol or drugs, the jury,' if not satisfied of the presence of the specific intent, may find the respondent guilty of a lesser crime rather than ‘not guilty.’ ” And in State v. Patton, 206 Iowa 1347 , 221 N. W. 952 (1928), also cited to the same end, there was a conviction of larceny; and it was held that where intoxication is pleaded as a defense, the burden is upon the accused to show, “not that he was innocent, but that he was so affected thereby as to be unable to form a ‘criminal intent.’ ” In those cases, the principle invoked was that intoxication is not a defense to crime—a principle not applicable where, as here, the inquiry is as to the existence of the state of mind and mental operation made the constituents of murder in the first degree. Compare Hopt v. People of Utah, 104 U. S. 631 , 26 L. Ed. 873 (1881).

*544 But here the jury were told that wilful intoxication would not “reduce” the crime from murder of the first to the second degree, unless the accused proved that his mental faculties were “so prostrated” by drunkenness as to render him “incapable” of forming the requisite specific intent to take life. In justification, my brothers say that at the close of the State’s case, a wilful, deliberate and premeditated killing had been “proven and established” and the homicide “raised to first-degree murder,” and the burden was then cast on the accused to “advance facts” to “rebut the presumption of normal use and control of his faculties,” and thus to sustain the defense of intoxication by a preponderance of the evidence. The verb “reduce,” it is said, had reference “not to the' initial legal presumption” of murder in the second degree, but rather to the posture of the proof at the conclusion of the State’s case, “which firmly established murder in the first degree.”

We have no way of knowing what the term “reduce” signified to the lay minds of the jury. They were not told that it had relation only to the state of the evidence when the State had presented its case, as is now suggested. Yet in that view, the instruction shifted the burden of proof on the crucial elements of murder in the first degree. It called upon the jury, as the passage is read, to determine whether the evidence at the close of the State’s case had established a wilful, deliberate and premeditated murder, and then, if they settled that inquiry in the affirmative, to decide whether the accused had proved by a preponderance of the evidence that, by reason of drunkenness, he was “incapable” of forming the specific intent to take life already found as a fact against him. It would seem to be elementary that the issue of a wilful, deliberate and premeditated murder could not be resolved except upon a consideration of all the evidence. Where it is incumbent on the jury first to find whether the proofs adduced by the State alone generate the conviction beyond a reasonable doubt of a specific intent to kill and its execution with deliberation and premeditation, and the issue is resolved in the affirmative, the burden of proof ex necessitate shifts to the accused, to overcome that judgment. And, as to the defense *545 of intoxication, it oonld be overthrown only by proof that drunkenness had rendered him “incapable” of forming the specific intent to take life which the jury had then found he had in fact entertained. Certainly, “reduce” hypothesizes murder in the first degree and thus puts the burden of proof on the accused; the word is not susceptible of any other meaning.

Pirst-degree murder is a crime of the first magnitude, and the interests of society demand punitive measures commensurate with its character; but it is no less important that one accused of an offense of such gravity be accorded all the basic safeguards of due process designed to secure him against an adjudication of guilt unless all the ingredients of the crime are proved beyond a reasonable doubt. The statute defines the offense; and the criterion of guilt is the existence in fact of the statutory elements, with the burden of proof upon the State.

I would reverse the judgment and award a venire de novo.

For affirmance—Chief Justice Vanderbilt, and Justices Case, Oliphant, Waoheneeld, Burling and Aokerson-—6.

For reversal—Justice Hehbr—1.