I cannot assent to the proposition declared in the majority opinion, that the erroneous definition given by the trial judge of what constitutes murder of the second degree was harmless error. It cannot be successfully disputed that under the evidence the jury might have properly found murder of the first or second degree or of manslaughter. The Chancellor, in the majority opinion, says: "Now, as the jury found the defendant guilty of murder in the first degree, and there was sufficient evidence to support that finding, and which was not against the weight of the evidence, the defendant is not harmed by the erroneous *Page 107 charge with reference to murder in the second degree, assuming that there was error in that respect."
The trial judge defined murder of the second degree as follows: "Murder in the second degree presents those classes of murder which are intended to do mere bodily harm, without intent totake life, or where the act is done in the heat of passion, but without justification, and lacking the other elements of the highest degree of crime, premeditation, deliberation and willfulness."
Section 107, Crimes act (2 Comp. Stat., p. 1780), provides: "Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in perpetrating or attempting to perpetrate any arson, burglary, rape, robbery or sodomy, shall be murder in the first degree, and all other kinds of murder shall be murder in the second degree."
In State v. Bonofiglio, 67 N.J.L. 249, Chief Justice Gummere, speaking for this court, said (at p. 244): "A reading of our statutes shows that the legislature, when it used the words `deliberate' and `premeditated,' meant that something more than the bare intent to kill should exist in order to constitute murder in the first degree, for it first specified two cases of homicide in which both deliberation and premeditation are present to a marked degree, viz., by the administration of poison and by lying in wait, and then declared that murder perpetrated by anyother kind of willful, deliberate and premeditated killing should be murder of the first degree. The specification of these two cases is significant; it emphasizes the meaning which the legislature intended should be given to the words `deliberate' and `premeditated.' In our opinion, notwithstanding the great respect we have for the learning and accuracy of statement of the distinguished jurist who delivered the opinion of the Supreme Court in the Donelly case, the presence of a specific intent to take life is not, standing alone, conclusive that the homicidal act was done with deliberation and premeditation."
This logical reasoning cannot be successfully weakened. As a corrolary, the intent to take life does not raise a homicide *Page 108 from a murder in the second to murder in the first degree. It is quite clear to me that the jury, a body of laymen, when instructed by the trial judge that murder in the second degree is committed where the intent is to do mere bodily harm, without intent to take life, would naturally understand that in order to find the accused guilty of murder in the second degree the evidence must not only show that the intent of the accused was to do mere bodily harm, but it was without the intent to take life. This was manifestly error and harmful.
Firstly, the intent must be to do grievous, and not mere bodily harm, in order to constitute murder in the second degree. Secondly, an intent to take life does not, per se, raise murder in the second to murder in the first degree.
The trial judge was placing before the jury two classes of cases in which a verdict of second degree murder could be rendered, under the evidence; the first class being where the intent of the accused was "to do mere bodily harm, without intent to take life," which he defined to be murder in the second degree, and the second class, "where the act is done in the heat of passion, but without justification, and lacking the other elements of the highest degree of crime, premeditation, deliberation and willfulness." He, obviously, by his erroneous definition of murder in the second degree, prejudicially influenced the jury not to find a verdict of murder in the second degree if it came to the conclusion that the intent of the accused was to take the life of the deceased. For he expressly told the jury that if the intent was to do mere bodily harm, without intent to take life, it was murder in the second degree. The term "grievous bodily harm" has a definite legal meaning. It means a greater injury than "mere bodily harm." Worcester defines "grievous" to mean "in a generic sense, atrocious, heinous, heavy." This is also its meaning in a legal sense. Rex. v.John Cox, Brit. Cr. Cas., Russel and Ryan 362.
In view of the incontrovertible fact that there was evidence in the case under which the jury would have been warranted to render a verdict of murder in the second degree or of manslaughter, the reasoning of the prevailing opinion that *Page 109 because the jury found the defendant guilty of murder in the first degree, and there was sufficient evidence to support that finding, and which was not against the weight of the evidence, the defendant is not harmed by the erroneous charge with reference to murder in the second degree, assuming there was error in that respect, is palpably illogical. It seems to me that the natural result of the statement of the trial judge that "murder in the second degree presents those classes of cases of murder which are intended to do mere bodily harm without intent to take life" * * * was to eliminate from the jury's consideration the issue whether or not the defendant was guilty of the lesser degree of murder; for if we give to what the court said a construction most favorable to the state, it was equivalent to saying that if the intent of the defendant was to do mere bodily harm, without the intent to kill, then it was murder in the second degree; but if his intent was to kill, it was murder in the first degree. An intent to take life is a constituent of murder in the first degree, though not a necessary element of murder in the second degree. For if the intent was to do only grievous bodily harm, and the victim dies, it is murder in the second degree. To constitute murder in the second degree it is immaterial whether the intent was to do grievous bodily harm or to take life, if the wound or hurt was inflicted with either intent, and the victim dies, it is murder in the second degree. But the trial judge, by instructing the jury that if the intent was to do mere bodily harm, without the intent to take life, and death ensued, then that was murder in the second degree, practically charged the jury that under the law, as he expounded it, a mere slap in the face or any unlawful force which inflicted bodily harm, however slight, and death resulted therefrom, would warrant a verdict of murder in the second degree, provided there was no intent to take life or to do more than mere bodily harm, or where the act is done in the heat of passion but without justification, and in the absence of all the elements of murder in the first degree — premeditation, willfulness and deliberation. This exposition of the law was palpably erroneous and prejudicially misleading. *Page 110 The law is too well settled to need the citation of authorities that in the absence of any of these elements the criminal homicide is reduced from first degree murder to a lower degree. It is therefore obvious that the court's instruction to the jury eliminated the finding of a verdict of murder in the second degree, notwithstanding that at the commencement of the charge the jury was told that under the form of the indictment it could convict the defendant of murder in the first or second degree, or of manslaughter. By eliminating from consideration of the jury, in consequence of the erroneous conception of the trial judge of what constitutes murder in the second degree, the lesser degree of murder, he confronted the jury with the dilemma of either convicting the defendant of murder in the first degree or of finding him guilty of manslaughter. Facing such a legal situation, created by the court, it was but natural that an intelligent jury would be unwilling to find under the evidence in the cause a verdict of manslaughter, but might willingly and properly have found a verdict of second degree murder, had it not been influenced and misled by the instruction of the court that this could not be properly done in a case where there was proof of an intent to take life, or where there was an absence of all three elements of murder in the first degree — willfulness, deliberation and premeditation.
The question presented for the decision of the jury was this: Was the defendant, under the evidence and the law applicable thereto, as defined by the court, guilty of any of the degrees of murder or of manslaughter? How can it be said then with any show of sound reason where, as in the case here, which presented facts and circumstances upon which a jury might properly, under proper instructions from the court, as to the law, have found the defendant guilty of any one of the crimes above enumerated, that the charge to do mere bodily harm without the intent to take life was murder in the second degree had no tendency to prejudice the defendant upon the merits of the case? It is difficult to conceive of any statement of the law, coming from the court, that could have been more prejudicial and harmful to the defendant. *Page 111 For the ordinary lay mind, as has already been observed, could only understand from such instructions that if there was an intent to kill it was murder in the first degree. To say that because there was sufficient evidence to support a finding of a verdict of murder in the first degree, and which is not against the weight of the evidence, the defendant was not harmed by the erroneous definition of murder in the second degree, would be an accurate legal view, in a case where, under the law and the evidence, there was no basis upon which a jury could properly find a lesser degree of homicide than that of murder in the first degree. But in the instant case, where, admittedly, in the charge of the trial judge and in the prevailing opinion, there was evidence upon which a jury could have properly found a verdict of a lesser degree than that of first, the statement that because there was sufficient evidence to support the verdict of the jury, and which was not against the weight of the evidence, therefore, the defendant was not harmed by the erroneous definition of murder in the second degree is startling to a legal conception of justice.
It cannot be said with any legal propriety that this concededly erroneous charge, as to what constitutes murder in the second degree, did no harm to the defendant upon the merits of the case, because there was testimony which would sustain a verdict of murder in the first degree, for the reason that there was a phase of the case which would have warranted the jury in finding a verdict of murder in the second degree. Nor can we properly say with any degree of either legal or moral certainty that the instruction did not have a harmful or prejudicial effect upon the minds of the jury, for the human mind would naturally go to no further extent than to conceive that such a misstatement of the law had a tendency to mislead the jury in determining the degree of murder of which the defendant was found guilty.
This court, in State v. Clayton, 83 N.J.L. 673, 675, speaking by Mr. Justice Garrison, said: "It is argued that the error is harmless because in the body of the charge the degrees of murder had been accurately defined. So they had, *Page 112 but how were the jury to know which was the law? Our theory of jury trials proceeds upon the fundamental assumption that the jury will take the law from the court, not that they shall be the judges of its correctness, or that as between two conflicting statements of the law they will unerringly single out the correct one."
In the present case the suggestion is, that since the jury rendered a verdict of murder in the first degree it must have found all the constituents of that degree of murder present, and therefore no harm was done to the defendant, is reasoning within a circle, and begs the meritorious question, which is, whether the jury, if properly instructed, might not have found murder in the second degree? It is clear to me that the jury was prevented from doing this as a result of the erroneous instruction. It is further to be observed that the method of reasoning adopted to sustain the verdict, notwithstanding the erroneous and misleading instruction, is palpably illogical. The verdict of the jury is wrongly made an essential part of the premises on which such reasoning is founded in order to uphold its validity. This is rather a novel method to reach a logical result. The verdict was the result of the premises, and, therefore, to make the verdict a part of the premises to establish that the jury was not misled is like unto placing the cart before the horse. In other words, the method of reasoning resorted to is by process of inversion, for instead of reasoning from the source leading to the verdict, it is attempted by the process used to reason from the result, that is the verdict, to the source, the true premises which produced the verdict and of which the verdict could be no part, to establish that the erroneous instruction was harmless. The fallacy of this forensic philosophy is obvious, since it is conceded that the instruction as to what the constituents of murder in the second degree are was erroneous, and as that was a part of the premises, who can say with any degree of legal or moral certainty that if murder in the second degree had been properly defined it would not have resulted in a verdict of murder in the second degree? How could the jury have found otherwise than it did, in obeying *Page 113 the instruction of the court, after being told that in order to find a verdict of second degree there must be an absence of the intent to take life, and the intent must be confined to do only mere bodily harm, or if the killing was done in a heat of passion there must be an absence of willfulness, premeditation and deliberation, constituents of murder in the first degree? Whereas the absence of any of these elements reduces murder in the first to murder in the second degree. If this instruction was not emphatic enough to influence a jury not to bring in a verdict of murder in the second degree, I cannot conceive of any more expressive terms that could have been used in that respect, except to have said directly what was said indirectly, that a verdict of murder in the second degree could not be properly rendered under the evidence.
Nor am I in accord with the views expressed in the majority opinion that the verdict was not against the weight of the evidence. I think it was. After a careful reading of the testimony I reached the result that the testimony warranted no greater verdict than that of murder in the second degree. There was no reliable proof that there was either premeditation or deliberation. For proof of premeditation the state relied on Lee Edwards, whose testimony was to the effect that on the morning of the occurrence of the homicide he saw the defendant in another pool room and heard him say to a person who was unknown to the witness that he was going to kill the deceased, in a tone of voice loud enough for him and others to hear. His testimony was contradictory and bore the earmarks of invention. Lee Edwards was not corroborated in any respect. The shooting was the outcome of a hot dispute between the defendant and the deceased in a room, such as is described in the prevailing opinion, and upon the deceased making some obscene retort to the defendant, the defendant shot him.
Moreover, the defendant was not, in my judgment, accorded a fair trial. Much hearsay testimony of a prejudicial and harmful character to the defendant was allowed to come into the cause. It is true that the counsel who appeared for *Page 114 the defendant below offered no objection, either through incompetency or indifference, or both, to such testimony, but it seems to me that this culpable inertia of counsel did not relieve the judge from a duty, in a case where a defendant is on trial for a capital offense, from protecting him against improper influence being injected into the cause. For this reason alone there should be a new trial.
I am further of the view that the power vested in this court by the act of 1921, to pass upon the question whether a verdict is against the weight of the evidence, and if so to set it aside, is a power akin to the power exercised on a rule to show cause why a new trial should not be granted, therefore, it should be exercised in the same manner; and where it appears that a jury might have been influenced by incompetent testimony whether or not such testimony was objected to, or where it appears that a fair trial was not had, the verdict should be set aside. The conception that though the testimony was incompetent and was harmful and prejudicial, nevertheless, because such testimony came into the case without objection, the life of a human being shall be taken, is revolting to the sense of humanity and justice.
It is due to the counsel of defendant, who ably argued the case before this court, to state here that he was not the counsel who conducted the trial of the defendant at bar. As to the charge of the court relating to what the court of pardons may or may not do in the event of a conviction, c., I concur in the views expressed by Judge White, in his dissenting opinion.
For the reasons given I vote to reverse the judgment, to the end that the defendant may have a new trial.