Taking the whole charge together, and especially that portion quoted at length in the majority opinion, applicable to deliberation and premeditation, I am unable to construe it otherwise than as leading up to the culminating proposition that if the jury "believe there was a design and a determination to kill distinctly formed in the minds of these defendants, or either of them, at any moment before or at the time the shots were fired, which design was deliberately and with premeditation carried out, it was a willful, deliberate and premeditated killing, and, therefore, murder in the first degree."
This is positive and specific, and seems plainly incapable of reconciliation with the rule "appreciable time" laid down by the Chief Justice in State v. Bonofiglio, 67 N.J.L. 239; by Chancellor Magie in State v. Zdanowicz, 69 Id. 627; by Justice Garrison in State v. Clayton, 83 Id. 673, 674; and by the writer in State v. Mangano, 77 Id. 544. In the last case the trial court said: "If you find that this defendant had formed in his mind an intent to kill, and then instantly he deliberately perpetrated the act to carry out the intention, that is the deliberation and premeditation which the law requires,"c. This was held erroneous.
The case of State v. Banusik, in this court, 84 N.J.L. 640, was decided in November, 1906. The judicial language "an instant prior to the act of killing," used by the trial court, was in effect conceded to run counter to the rule laid down in the Bonofiglio and other cases; but the court considered that it was so qualified by the rest of the charge as to be cured of harmful error, and went on to say that in any event, under the proofs, he was guilty of murder in the first degree, if guilty at all, because premeditation for two or three months had been fully shown. *Page 238
The date of the decision in the Banusik case has been noted because, while later in time than the leading case of Donnellyv. State, cited in the main opinion, and also the cases of Bonofiglio and Zdanowicz, supra, it was earlier than either the Mangano or the Clayton cases, which, as I understand them, follow the earlier cases and enunciate what I understand to be the established rule.
Believing that harmful error was committed, I must vote to reverse the judgment.
Justices Kalisch and Katzenbach authorize me to say that they concur in the views above expressed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, BLACK, WHITE, HEPPENHEIMER, ACKERSON, VAN BUSKIRK, JJ. 8.
For reversal — PARKER, KALISCH. KATZENBACH, JJ. 3.