Plaintiff in error was convicted of murder in the first degree without recommendation of life imprisonment and sentenced to death according to the statute. The writ of error brings the case up on bills of exception and under the one hundred and thirty-sixth section of the Criminal Procedure act. *Page 489
The assignments of error and specifications of causes for reversal, twenty each in number, are substantially the same. Of these the refusal of the trial judge to charge the sixteenth and seventeenth of the defendant's requests for instruction is argued.
The first of these requests was in the language of the statute, drafted in accordance with the opinion of this court in the case of State v. Wilson, 60 N.J.L. 171, and reads as follows:
"Every person convicted of murder in the first degree shall suffer death unless the jury shall, by their verdict, and as part thereof, upon and after consideration of all the evidence, recommend imprisonment at hard labor for life, in which case this and no greater punishment shall be imposed, and every person convicted of murder in the second degree shall suffer imprisonment at hard labor not exceeding thirty years."
The other request read:
"When the character and extent of a crime is made by law to depend upon the state and condition of the defendant's mind at the time, and with reference to the act done, intoxication, as a circumstance affecting such condition and state of the mind, is a proper subject for inquiry and consideration by the jury. If by law, deliberation and premeditation are essential elements of the crime, and by reason of drunkenness or any other cause, it appears that the prisoner's mental state is such that he is incapable of such deliberation and premeditation, then the crime has not been committed."
The facts which the evidence tended to prove and on which these requests were predicated were as follows: On the early morning of March 21st, 1937, Roach broke into the apartment occupied by one Celia Kadesh and her daughter Bessie in Plainfield. While Roach was in the act of stealing a pocketbook from the apartment Mrs. Kadesh awoke from sleep and Roach struck and killed both the mother and daughter, escaping with the pocketbook of Mrs. Kadesh which was later found in his possession. When Roach was arrested some of his clothing found in his home was marked by numerous spots of human blood. *Page 490
A signed statement made by the plaintiff in error was offered in evidence and this statement substantially corroborates the foregoing narrative. Called to the stand in his own defense Roach testified to extensive drinking the day and night preceding the crime, and that he had no recollection of the killing or of the events immediately preceding and following, and finally that he did not know whether he killed the women or not. It was in this state of the proofs that the two requests which it is now claimed were dealt with erroneously by the court were tendered.
It is sufficient to say that the court in its general charge instructed the jury substantially in the language of the first request, and the first sentence of the second was substantially charged. Under the facts the killing, if it constituted murder at all, was committed while perpetrating a burglary and under the Crimes act (Comp. Stat., p. 1779, § 106), is mandatory to the effect that "murder which shall be committed in perpetrating or attempting to perpetrate any burglary shall be murder in the first degree."
In the present case there is no room for doubt as to the character of the crime. The proofs were clearly that the killing if done by Roach, and of this there can be no reasonable doubt, was in the perpetration of a burglary. This is conceded in the brief of the plaintiff in error. In the absence of the interposition of a plea of insanity the state of mind of the defendant was not in issue. Intoxication in such case is not a defense and cannot reduce the crime from first to second degree.State v. James, 96 N.J.L. 133; State v. Turco,98 Id. 61; State v. Zeller, 77 Id. 619.
Under the circumstances the second request in its entirety was properly refused.
The judgment is affirmed.