defendant must establish “clear and convincing proof that a fair and impar tial trial cannot be had before a jury in the county where the indictment was found.”
How later courts described this case
- defendant must establish “clear and convincing proof that a fair and impar tial trial cannot be had before a jury in the county where the indictment was found.”
- defendant must establish “clear and convincing proof that a fair and impar *68 tial trial cannot be had before a jury in the county where the indictment was found.”
Written by the judges who cited it.
The opinion
Heher, J.
(dissenting in part). I would reverse the judgment of conviction entered against Harry Wise, for error in the instruction given the jury at the instance of the State, Ho. 5, that the “crime itself and the circumstances under which it was committed form the criterion for a recommendation of life imprisonment or a refusal to recommend life imprisonment,” and that “Evidence with reference to past life and antecedent background are out of place in a trial for crime and should not be considered by you in determining your verdict.”
This direction constituted a departure of substance from the principle of the statute, N. J. S. 2A :113-4, designed as it was to invest the jury in a capital case with full discretion, “upon and after the consideration of all the evidence,” to “recommend” and thus to fix the punishment at life imprisonment.
I adhere to the rule of interpretation advanced in the dissent filed in State v. Molnar, 133 N. J. L. 327, 337 (E. & A. 1945): The statutory discretion is to be exercised upon a view of the evidence as a whole. The issue is committed to the judgment and consciences of the jury; and the inquiry *108 is whether, under all the circumstances disclosed by the evidence, it would serve the interests of justice, as between society and the accused, if capital punishment were not imposed.
The statute in unmistakable terms empowers, indeed directs, the jury to consider “all the evidence,” not a given part of the evidence, in the resolution of the crucial issue of death or life imprisonment as the penalty for murder in the first degree; and there is no standard laid down for the guidance or control of the jury in the exercise of the function. It is enjoined only to consider “all the evidence” in the performance of the duty; and its action, after so doing, is not ruled by any criterion save its own collective discretion and judgment. This, by force of the broad terms of the statutory power..
“The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every ease in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment.” Winston v. United States, 172 U. S. 303, 309, 19 S. Ct. 212, 215, 43 L. Ed. 456 (1899).
In elaborating the legislative text, great care must be taken to avoid alien refinements and distinctions infringing the substance of the function or tending to confuse the lay mind as to its essential quality; and the instruction here, I submit, does not satisfy this test. The policy is the exclusive province of the lawgiver; and it is to be enforced as written, giving to the legislative terms their normal sense and significance. Here, the judge charged the jury in the statutory language, “all the evidence,” and then added the qualifying terms interposed by the State.
The ruling in State v. Barth, 114 N. J. L. 112 (E. & A. 1935), invoked by the State, concerned the exclusion of evidence obviously immaterial relating to “details of family life, some addressed to the defendant himself, some to his father, some to his sister and perhaps others, and bearing on such subjects as the reading of detective stories, listening to stories of the great war, playing of games involving the handling *109 of firearms, and the like,” offered by the accused as relevant on the issue of punishment alone; and the holding there is to be assessed accordingly. The evidence now in question was adduced in substantial part by the State on cross-examination of the accused. He had served his country in the armed forces for three years, 11 months of that period on the Korean Front, where he formed the narcotic habit and had been an addict fox more than four years when the killing here occurred. He was described by the physician who treated him after his arrest as a “sociopathic personality, a personality that has great difficulty in integrating himself into society and gets in conflict with society.”
Otherwise, I concur in the opinion of Mr. Justice Wacheneeld. It is not contended the foregoing instruction prejudiced the codefendants. The defendants made no issue at the trial of their guilt of murder in the first degree; they sought only a mitigation of the punishment to life imprisonment.
I would reverse the judgment against Harry Wise, and direct a retrial of the issue as to him, and affirm the judgment of conviction against the codefendants, Albert Wise and Alfred Stokes.
Jacobs, J., concurring in result.
For affirmance—Uhief Justice Vanderbilt, and Justices Oliphant, Wacheneeld, Burling, Jacobs and Brennan— 6.
For affirmance in part and reversal in part—Justice Heher—1.