State v. White

Eeafois, J.

(concurring). I concur in the opinion of the Chief Justice.

Under that opinion the case is going back for retrial. In my judgment, this circumstance makes it necessary to discuss the legal problem presented by the trial court’s denial of the defendant’s request to charge the jury in effect that the evidence adduced on the issue of insanity may be considered in deciding the matter of punishment. Those of my colleagues who joined in the majority opinion feel that *183 the particular question is not directly involved and accordingly they express no point of view thereon.

The request espouses the principle that any abnormal or subnormal mental condition of a defendant in a capital case, even though it may not satisfy the M’NagMen test of insanity, is admissible in evidence and is a proper subject of consideration by the jury in reaching a decision as to whether the death penalty should be imposed or imprisonment for life should be recommended. Such a rule is a just and humane one; it ought to be engrafted on the law of this state and the jury authorized to use it as a factor in the evaluation—not of guilt or innocence—but of life or death for the defendant.

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 mandatory, but that if they recommend imprisonment for life “no greater punishment shall be imposed.” N. J. 8. 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:Y-10(&). 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 íot rehabilitation. And if either the probation department or the judge feels that a psychiatric examination is desirable or may be helpful, it is ordered. On the basis of my own experience as a County Court judge, I do not believe that adequate or just sentences can he meted out without such investiga *184 tions. The cited rule of this court recognizes the concept that in the administration of the criminal law, justice is served only by fitting the punishment to the offender as well as to the crime.

But in the one situation where, after a determination of guilt, the issue is life imprisonment or death, a jury of inexperienced laymen are required to reach a decision solely on the evidence of guilt or innocence of the homicide. That is our existing case law. 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. Barth, 114 N. J. L. 112 (E. & A. 1935); State v. Favorito, 115 N. J. L. 197 (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). I am convinced that such a doctrine disserves and misconceives the purpose of the statute.

The mental status or capacity or condition of an accused is an integral part of the act of killing. Although he may not escape a verdict of guilt because the disability of his mind does not reach the point of insanity within the legal definition, the ordinary dictates of a humane society demand that in the formulation of the moral judgment as to the degree of responsibility for purposes of punishment, the evidence of such disability or departure from the normal ought to be considered relevant and material. In deciding whether the killer should be put to death it is inconceivable that, under any modern system of law, a jury should be denied all knowledge of a mental disability, short of insanity, which operated as a motivating influence in the commission of the crime. At this point in the proceeding, guilt of the crime is no longer in question; the sole issue is punishment.

It has been suggested that mental deficienejr appearing in the evidence, which did not wipe out the ability to distinguish between right and wrong and so was not a defense to the criminal charge, might well justify a jury in concluding that a recommendation of life imprisonment was warranted. See dissenting opinion, State v. Molnar, supra, 133 N. J. L. at pages 338, 339. And the majority opinion *185 in the present ease indicates that such a course would be proper. But what if a motion is made by the State to strike such testimony from the record on the ground that it does not sustain the defense of insanity, as was done (and sustained) in State v. Cordasco, supra, 2 N. J. at page 195; or under the obvious implication of State v. Wise, supra, 19 N. J. at page 107? The possibility of that course being pursued on the retrial of this indictment impels me to express the views outlined herein.

Other jurisdictions have dealt with the precise problem. The Wyoming statute permits the jury in a capital case, whether on a plea of guilty or a trial, to "qualify their verdict by adding thereto, ‘without capital punishment/ ” Rev. St. 1931, § 32-201, in which event the sentence is required to be life imprisonment. In discussing its application, the Supreme Court said:

“Counsel for the defendant admit that in cases in which the trial judge imposes the punishment, without the aid of a jury, it is proper for him to inquire into the circumstances under which the crime was committed. * * * It may be that the same latitude should not be allowed when the jury fixes the penalty, which would be permissible when the trial judge does so, but it is quite apparent that the same reason for examining into the circumstances of the commission of the crime exists equally in both cases. While, as stated, the discretion of the jury to impose the penalty of death or life imprisonment is untrammeled, they cannot, in the very nature of things, bring in an intelligent verdict, unless they know the circumstances under which the crime was committed, and all the surrounding facts, including the age of the defendant, his intelligence, his mental condition at the time of the commission of the crime, and other relevant facts which might properly aid the jury in exercising their discretion. It is hardly credible that the statute contemplates that the jury shall exercise their discretion blindly and without knowledge of the facts. That must be true in cases in which the defendant pleads guilty as much so as in those eases in which he pleads not guilty, and that, too, notwithstanding the foregoing rule that the jury should be left untrammeled by any instruction of the court in exercising their discretion. * * * They have a broad discretion, it is true, but one which the lawmaking power intended should be wisely and prudently exercised, in the light of the evidence. Surely, it was never contemplated that they might, without regard to the facts and circumstances of the case, arbitrarily and without reason, act upon the question of punishment.” State v. Brown, 60 Wyo. 379 , 151 P. 2d 950 (1944).

*186 Under the statute of that state defining first degree murder and fixing the penalty, as has been indicated above, the court, as a matter of practice, may accept a plea of guilty of murder in the first degree and then impanel a jury in order to have the punishment determined. It must be recognized that in many murder cases the defendant admits his guilt and the only question open is the matter of punishment. The procedure adopted by the Wyoming courts—and a number of other jurisdictions—obviously permits expeditious disposition of homicide eases. It circumvents long trials and avoids the large expenditure of public moneys usually required in order to prove the guilt that the accused readily concedes. In Few Jersey, if the trial court accepts a plea of non vult to first degree murder, the death penalty cannot be inflicted. But if such a plea is refused, usually because the prosecutor feels that the death penalty is warranted and therefore recommends against its acceptance, a not guilty plea is entered and the case proceeds to trial. At such a trial the State is required formally to prove guilt with all the solemnity that ordinarily attends an actual contest on the subject, although the accused sits in court awaiting the opportunity to admit his crime, and although every one concerned knows that the only problem is that of punishment. However, our practice stems from the statutory mandate and any change must come from the Legislature. N. J. S. 2A :113-3. The act barring the plea of guilty was adopted in 1898. L. 1898, c. 235, p. 824. The more modern modus operandi of other states may justifiably attract attention in Few Jersey.

The pertinent enactment of Pennsylvania provides:

“Whoever is convicted of the crime of murder in the first degree is guilty of a felony and shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict. * * * In cases of pleas of guilty, the court, where it determines the crime to be murder of the first degree, shall, at its discretion, impose sentence of death or imprisonment for life.” 18 P. S. § 4701.

*187 In construing this statute, the Supreme Court of that state said:

“It is, of course, true that the jury is entitled to be informed of all the circumstances and conditions properly to be regarded as relevant to the determination of the penalty; therefore it has been held that testimony concerning the mental incapacity of a defendant charged with murder, even though short of insanity, is admissible for that purpose.” Commonwealth v. Wooding, 355 Pa. 555 , 50 A. 2d 328 (1947).

Evidence of mental weakness or deficiency must be taken into consideration in determining and fixing the penalty, whether the arbiter is the court on a plea of guilty or the jury. Commonwealth v. Thompson, 389 Pa. 382 , 133 A. 2d 207 (Sup. Ct. 1957), certiorari denied 355 U. S. 849 , 78 S. Ct. 77 , 2 L. Ed. 2d 59 (1957); Commonwealth v. Elliott, 371 Pa. 70 , 89 A. 2d 782 (Sup. Ct. 1952); Commonwealth v. Zietz, 364 Pa. 294 , 72 A. 2d 282 (Sup. Ct. 1950); Commonwealth v. Irelan, 341 Pa. 43 , 17 A. 2d 897 (Sup. Ct. 1941); Commonwealth v. Hawk, 328 Pa. 417 , 196 A. 5 (Sup. Ct. 1938); Commonwealth v. Stabinsky, 313 Pa. 231 , 169 A. 439 (Sup. Ct. 1933). 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), it was declared that the jury “should be able intelligently to fix the penalty, and, to that end, they ought to know what manner of man it is upon whom they are being asked to impose sentence,—his criminal proclivities, his demonstrated attitude toward law and order, and, on the other hand, such mitigating factors as may exist in the nature of impaired health, mental deficiencies, state of intoxication or other circumstances.” And in Commonwealth v. Bibalo, 375 Pa. 257 , 100 A. 2d 45 (1953), the Supreme Court found the following instruction to the jury to be “unimpeachable”:

“If you find this defendant guilty of murder in the first degree, you may consider the proof in insanity, which, even though it may not substantiate the charge of insanity, it may be sufficient to convince you that there are circumstances wTiich would justify you in not administering the death penalty.”

*188 The Supreme Court of Illinois, in discussing the statute which empowers the jury to fix the punishment in a murder case, said:

“It necessarily follows that, in order to determine the degree of punishment to be imposed for this offense [as between death, life imprisonment or for a term not less than 14 years], evidence must be admissible' which would not have been admissible, or, if admitted, could have availed nothing, at common law.” Fletcher v. People, 117 Ill. 184 , 7 N. E. 80, 82 (1880). (Insertion mine.)

An Idaho law permits the court in homicide cases to hear “circumstances” either in mitigation or aggravation of the punishment after conviction. The interpretation thereof by the Supreme Court in State v. Owen, 73 Idaho 394 , 253 P. 2d 203 (1953), is of interest:

“* * * It may be open to debate as to whether the ‘circumstances’ mentioned in § 19-2515, I. 0., refer particularly to circumstances surrounding the commission of the crime and tending to aggravate or mitigate the character of the conduct involved, or whether such circumstances include also the convict, himself, as an individual, which would include his background, his age, upbringing and environment or any other matter appropriate to a determination of the degree of culpability. We think that the statute should be given the broader interpretation, particularly in a capital case. James v. State, 53 Ariz. 42 , 84 P. 2d 1081 .

It, therefore, appears that the law contemplates that in fixing the penalty, the court, when requested by either party, may and should hear and consider circumstances in aggravation or mitigation of the punishment. It logically follows that if it is proper for the court to hear arid consider such evidence, the Jury where it is called upon to fix the punishment, should have the opportunity to consider such proof, subject, of course, to a proper instruction limiting the jury’s consideration of such evidence to the determination of punishment, and cautioning that it is not to be considered in determining guilt or innocence, or be allowed to influence the determination of that question.”

Similar expressions may be found in Colorado: Abshier v. People, 87 Colo. 507 , 289 P. 1081 (Sup. Ct. 1930); Indiana: Sherer v. State, 188 Ind. 14 , 121 N. E. 369 (Sup. Ct. 1919); Oklahoma: Prather v. State, 14 Okl. Cr. 327, 170 P. 1176 (Crim. Ct. App. 1918); Kentucky: Howell v. Commonwealth, 313 Ky. 662 , 233 S. W. 2d 270 (Ct. App. 1950); cf. Miller v. Commonwealth, 200 Ky. 435 , 255 S. W. *189 96 (Ct. App. 1923); and see, Weihofen, Mental Disorder as a Criminal Defense (1954), p. 209.

Under all of the circumstances, I have no doubt that the proper construction of our statute is that evidence of a defendant’s mental deficiencies should be admitted in murder cases as a factor attending the commission of the offense, for evaluation by the jury in connection with its deliberations on the issue of punishment.