The opinion
IIei-ier, J.
(dissenting). I find error in the refusal to charge, as requested by the defendant Bunk, that there could not be an unqualified verdict of murder in the first degree *477 unless the jury were unanimous on guilt and capital punishment.
It is the absolute right of the accused in a criminal case to have the jury distinctly instructed on a principle of law material to the issue; and a refusal to charge a specific request embodying the principle is reversible error unless the subject matter has been charged in substance. State v. De Geralmo, 83 N. J. L. 135 (Sup. Ct. 1912); State v. Barone, 96 N. J. L. 417 (Sup. Ct. 1921); State v. Genese, 102 N. J. L. 134 (E. & A. 1925); State v. Haines, 103 N. J. L. 534 (Sup. Ct. 1927); State v. Larsen, 105 N. J. L. 266 (Sup. Ct. 1929); State v. Rusnak, 108 N. J. L. 84 (E. & A. 1931); State v. Capawanna, 118 N. J. L. 429 (Sup. Ct. 1937); affirmed, 119 N. J. L. 337 (E. & A. 1938); State v. Gregory, 120 N. J. L. 326 (Sup. Ct. 1938). The right to “a distinct charge” on matters pertinent to the inquiry becomes fixed when a timely request is interposed. “One of the most important duties of the court is to declare the law applicable to a case to the jury when requested so to do. This should be done in such a way as not to leave room for misapprehension or mistake.” Roe v. State, 45 N. J. L. 49 (Sup. Ct. 1883).
It would seem to be fundamental in the statute that there be unanimity both as to guilt and punishment before a verdict of murder in the first degree can be returned by the jury. The legislative purpose plainly was to assign to the jury the determination of the question of which of the alternative punishments should be exacted where guilt is established, and thus to temper the strictness and severity of the old law. It would not be a realistic appraisal of the statute so to construe the expression as to permit a finding of murder in the first degree to stand, unmodified by a recommendation of life imprisonment and so sufficient to sustain a judgment of death, where the jury are divided on the issue of punishment. The principle of the mandatory death sentence was abandoned in 1916. P. L., p. 576, c. 270. Eollowing the decision of the old Court of Errors and Appeals in State v. Martin, 92 N. J. *478 L. 436 (E. & A. 1919), the Act was amended to provide the death penalty for murder in the first degree “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 life imprisonment is mandatory. P. L. 1919, p. 303, c. 134; now R. S. 2:138-4. The obvious policy of the statute is action by the jury on an issue of the utmost gravity. The jury are made the final arbiters of the punishment. There is no requirement in specific terms of unanimity on both guilt and punishment before a verdict can be rendered; neither is there a suggestion in the language that a finding of guilt shall entail capital punishment if the jury be not unanimous on the alleviation of the penalty. Under 'the original act, the jury were vested with an arbitrary discretion; under the amendment, the jury exercise judgment and discretion based on the evidence. State v. Cooper, 2 N. J. 540 (1949). The remission of the death penalty is a function committed to the jury. Their action is made known by the form and content of the verdict—remission by a recommendation of life imprisonment; the contrary by a failure of such recommendation. The choice is the jury’s; but a choice there must be, and the action must be unanimous.
The requirement of unanimity in jury verdicts in criminal cases is as ancient as the institution itself; and a construction that would sustain a finding of first-degree murder as a verdict calling for the death sentence, where there was a want of unanimity in the jury as to the punishment, is on the plainest principles insupportable unless that purpose is expressed in clear and unambiguous terms. In the normal course, unanimity is the rule as to all matters within the jury’s province. As said by Mr. Justice Reed in a case involving a similar federal statute: “A verdict embodies in a single finding the conclusions by the jury upon all the questions submitted to it.” Andres v. United States, 333 U. S. 740 , 68 S. Ct. 880 , 92 L. Ed. 1055 (1947). There, the Court unanimously ruled that the statute required unanimity in the jury both as to guilt and punishment. The common-law *479 attribute of unanimity in the verdict of a jury in criminal cases was reaffirmed and secured by Article I, paragraph 9 of the Constitution of 1947. See American Publishing Co. v. Fisher, 166 U. S. 464 , 17 S. Ct. 618 , 41 L. Ed. 1079 (1897); State v. Gerry, 68 N. H. 495, 38 A. 272 (1896); also, 24 L. R. A. 272, 43 L. R. A. 78.
Is not the question of punishment, involving as it does the power of life and death, so intimately identified by the statute with the basic issue of guilt as to constitute an integral part of that issue which must be resolved before a verdict can be returned? Can it be that the Legislature intended that unanimity as to guilt is sufficient to sustain the death sentence, even though all but one of the jurors had concurred in a recommendation of life imprisonment? Surely, under the statute a juror could refuse concurrence in a verdict of guilty, without qualification, if convinced that the death sentence should not be imposed. It would seem to be of the essence of the statutory policy that a juror considering the issue of guilt should not be “influenced consciously or unconsciously by knowledge that the finding of guilt of the crime charged will entail a mandatory penalty which in his opinion is not justified by the degree of moral guilt of the accused. Each juror should now know that the finding of guilt does not carry that mandatory penalty unless the jury fails to make a recommendation of life imprisonment a part of the verdict and each juror should know that he is one of the twelve judges who shall decide what the verdict shall be in all its parts. Until the twelve judges have agreed on every part of the verdict, they have not agreed on any verdict.” People v. Hicks, 287 N. Y. 165 , 38 N. E. 2d 482 , 138 A. L. R. 1222 (1941). The phrase “as a part of its verdict” was deemed significant of this purpose. Judge Lehman continued: “The trial court has read into the statute by implication a proviso that a jury must first agree upon a verdict of guilty, which will have the effect of condemning the accused to death and then may recommend life imprisonment as part of the verdict only if all the jurors agree to recommend life imprisonment. That is not justified *480 by the language of the statute and would in large measure defeat its plain purpose. Under that construction a jury still must face the choice of condemning the defendant to death or letting him go free unless all twelve jurors thereafter agree upon a recommendation of clemency. That construction ignores the fact that the choice whether a recommendation of life imprisonment should or should not be a part of the verdict is left to the jury and the verdict is incomplete until all have agreed. That construction assumes that the Legislature has confided to a single juror the choice of life or death for an accused.” New York’s statute is like ours. So is Mississippi’s. The Supreme Court there said: “The province of the jury as to their verdict is entire, and they should agree both as to the guilt or innocence of the accused and as to the penalty, if he is guilty.” Green v. State, 55 Miss. 454 (1877).
It may be conceded that the legislative language is not so explicit as to be unambiguous; but doubts as to meaning do not linger when consideration is given to the general policy of making the punishment subject to the discretion of the jury rather than the absolute rule of the prior statute which applied the death penalty in every case regardless of palliating circumstances. The new rule embodies the fruits of experience. Miscarriages of justice due to the inexorable decree of the statute were all too frequent. Penal statutes are to be strictly construed against the State; e converso, a statute such as this is to be broadly interpreted in favor of the accused. In the Andres case, Mr. Justice Eeed said: “In death cases doubts such as those presented here should be resolved in favor of the accused.” There should not be a grudging and reluctant concession to the new policy designed to substitute in the matter of punishment the humane impulses and promptings of the jury that heard the evidence and determined the issue of guilt for the unvarying rule of the old law. The wisdom of the policy is peculiarly a legislative province.
The charge did not convey to the jury the rule of the statute as thus construed. Indeed, the Judge made no mention of *481 this phase of the act. After stating the provision, he declared that he had “no power and no right to make any comment ox offer any advice with respect to the recommendation contemplated by this statute. That matter rests entirely and solely in your judgment and in your discretion, after a consideration of all the evidence.” It is clear the Judge had a different conception of the statutory rule. If the provision be read as I conceive it, then the error is conspicuous. The accused was entitled to specific instructions that would make certain the jury’s comprehension of the sense and precise meaning of the act. In the Andres case, Mr. Justice Frankfurter said of the function of the charge: “No part of the conduct of a criminal trial lays a heavier task upon the presiding judge. The charge is that part of the whole trial which probably exercises the weightiest influence upon the jurors. It should guide their understanding after jurors have been subjected to confusion and deflection from the relevant by the stiff partisanship of counsel.”
I would reverse the judgment and award a venire de novo to each defendant.
I join in the holding that the subsequent motion for a new trial for newly discovered evidence was not sustained by the proofs.
For affirmance—’Chief Justice Vanderbilt, and Justices Case, Oliphant, Waci-ieneeld and Burling—5.
For reversal—Justice Heher—1.