# State v. Laws > Supreme Court of New Jersey · September 25, 1967 · 50 N.J. 159 URL: https://www.frixlaw.com/law-library/cases/9757885 ## Case - **Full name:** The State of New Jersey, Plaintiff-Respondent, v. Horace Nelson Laws, Defendant-Appellant; The State of New Jersey, Plaintiff-Respondent, v. John Washington, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** September 25, 1967 - **Citations:** 50 N.J. 159; 233 A.2d 633; 1967 N.J. LEXIS 163 - **Precedential status:** Published - **Opinion:** Concurrence by Francis - **Judges:** Francis, Jacobs - **Cited by:** 72 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Modified on other grounds by State v. Laws, 51 N.J. 494 (1968). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757885 ## How later opinions describe it (automated extraction) - finding severance was not required even though evidence against one defendant was stronger than that against the other and third defendant was acquitted in course of trial ## Opinion text Francis, J. (concurring). I concur in the result reached by the Court. In view of the importance as well as the unusual character of the question upon which reargument is sought, I feel the need for some additional comments. The majority opinion expresses the view that when the question arose during oral argument of the appeal as to our authority to change the death sentence fixed by the jury to life imprisonment, the State “took the position that the murder convictions should not now be reversed but should be modified so that the defendants Laws and Washington would stand convicted of murder in the first degree with sentence of life imprisonment.” As the opinion says, the matter was not discussed in either brief, and only arose during oral argument. Since it arose in that fashion, I do not believe that the special assistant prosecutor’s comments should be regarded as a solemn stipulation given after full deliberation and thorough consultation with the prosecutor. Eor this reason, and because of the novelty of the issue involved, if the above quotation does represent the prosecutor’s view, it seems to me that we ought to have a written statement from him in his forthcoming brief, or in any form in which he cares to submit it, to the effect that if the trial court erred in answering the inquiry of the jury about parole and that is the only prejudicial error in the case, he is satisfied to waive the death penalty imposed by *190 the jury and to have this Court vacate that sentence and substitute for it a sentence of life imprisonment, in the event the Court decides it has the authority to do so. For purposes of perspective it should be noted that the controlling statute, N. J. S. 2A:113-4 says: “Every person convicted of murder in the first degree * * * shall suffer death unless the jury shall by its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend life imprisonment, in which case this and no greater punishment shall he imposed.” (emphasis added) Because of the unusual language employed by the Legislature, it seems to me (without indicating any view in the matter) that special consideration should be given to the following problems: (1) Assuming the Court on appeal in the ordinary criminal case has the power to review the sentence imposed by a trial judge and to modify it if deemed excessive or to impose a proper sentence if the one imposed is illegal, has the Legislature committed the authority to fix the sentence at death or life imprisonment to the jury alone in first degree murder cases upon its finding that the defendant is guilty of murder in the first degree? See the history of N. J. S. 2A:113-4 in State v. Sullivan, 43 N. J. 209, 241-247 (1964). (2) Since the statute appoints the jury to exercise its direction “upon and after the consideration of all the evidence” as to whether to recommend life imprisonment, can this Court solely because of an error by the trial court on a matter unrelated to the issue of guilt or innocence, set aside the jury’s judgment that the heinous nature of the murder warrants the death penalty and impose a sentence of life imprisonment? (3) In such a situation in view of the statutory language should not the Court vacate the death sentence and remand the matter for retrial by a jury on the matter of punishment alone? *191 (4) If prejudicial trial error was committed on a matter unrelated to a defendant’s guilt or innocence of the murder, would not this Court on appeal he required to treat it as reversible error calling for a new trial unless the Court, apart from the error, overrules the exercise of the jury’s discretion as to punishment and then considers all the evidence in the case, “and upon and after a consideration” of all of it, decides that in its discretion, contrary to that of the jury, the punishment should he life imprisonment rather than death? (5) If question 4 is answered in the affirmative, does it follow that regardless of N. J. S. 2A:113-4, this Court may exercise its discretion independently of the jury in all cases where the jury decides upon the death penalty after a consideration of all of the evidence, and change the death sentence to life imprisonment, if in its discretion the death penalty is too severe under the circumstances? Cf. Commonwealth v. Smith, 405 Pa. 456 , 176 A. 2d 619 (1962). (6) (a) In future trials of first degree murder cases, where the death penalty is sought, should not bifurcated trials be employed, the issue of guilt being tried first, and' immediately upon return of a verdict of guilt of first degree murder, the issue of a punishment, i. e., death or life imprisonment be tried out before the same jury? (b) Does not the doctrine of State v. Mount, 30 N. J. 195 (1959) and kindred eases make this course advisable? See United States v. Curry, 358 F. 2d 904 (2d Cir. 1966); Note, 52 Va. L. Rev. 359 (1966); The Two Trial System in Capital Cases, 39 N. Y. U. L. Rev. 50 (1964); Model Penal Code § 210.6 (Proposed Official Draft, 1962). Haneman, J., joins in this concurring opinion. For reargument — Chief Justice Weinteaub and Justices Jacobs, Ebancis, Peoctoe, Hall, Sohettino and Haneman. — 7. Opposed — None. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757885. Public record. Not legal advice.