In order to make clear the reason of my dissent from the opinion expressed by the majority of the court, it becomes necessary for me to add to the statement of facts set forth therein these additional facts: Prior to the time of the defendant's discharge from state's prison, where he had been confined for having slashed his wife's throat with a razor, he was examined as to his mental condition, and, as I read the testimony, because of his defective mentality he was discharged by the parole board. There was testimony in the case that it was upon the request of the daughter he slew that he made his home with her. There was also testimony coming from the defendant, and it was not contradicted that he had no grudge whatever against his daughter; that he never had *Page 397 any harsh words with her. The defense set up was insanity of the defendant at the time the deed was perpetrated. There was testimony to the effect that the defendant was suffering from Huntington's chorea. The physicians all agreed that this is a disease of the brain, hereditary, progressive, absolutely incurable, and, eventually, there is a complete dementia. There was also testimony that the symptoms of Huntington's chorea are wild outburst of sudden passion; that all of the brothers and sisters of the defendant, with the exception of one, were afflicted and suffering from the same disease. In fact, one of the sisters at the time was an inmate of the Overbrook Insane Asylum, suffering from the same disease. It also appears that the defendant had epileptic fits and had a convulsion while the trial was in progress, which convulsion occurred after the day's session was over. The convulsion was of such a character that he had to be carried to his cell and tied down to his cot and kept there for hours before he again became calm.
There was a challenge to the array of jurors as is set out in the majority opinion. A special panel of jurors, which the law requires to consist of forty-eight in number, drawn from the general panel, was served upon the defendant, from which he was entitled to challenge twenty without cause. It appears but ten of these jurors had been excused by the court, and with the addition of one juror, who had not been served, there were eleven absentees, and, hence, the defendant was limited to select a jury which was to pass upon his guilt or innocence from the remaining number. Exception was taken upon the ground that this was not in compliance with sections 82 and 83 of the Criminal Procedure act. I think the exception should have been sustained. The trial took place on June 30th, 1925. It appeared from the testimony of the clerk, whose duty it is to keep the record of the attendance of jurors, that all of the ten jurors had been excused from jury duty prior to the day of the trial. It is true that they had been excused from the general panel, but they were no longer jurors, and, hence, when their names were put upon the special panel of jurors, which was required *Page 398 to be served upon the defendant, it was a mere empty form to include the names of jurors who had ceased to be such, and as a matter of fact the defendant was served with a special panel of only thirty-eight jurors, whereas the law expressly requires that the special panel to be served shall consist of forty-eight jurors. The ten excused jurors were no longer jurors at all. Each had ceased to be such when he was excused from duty. The record further shows that they were excused by the judge before whom the case was subsequently tried. From the record there is nothing to indicate that these jurors were excused for cause.
The case of Patterson v. State, 48 N.J.L. 381, is therefore not in point. There can be no question that a judge has the right to excuse jurors from the general panel for cause. But it is an entirely different matter, however, in excusing jurors for a sufficient cause, and, having done so, nevertheless, to have them placed, as jurors, on the special panel after they had ceased to be jurors. Chief Justice Beasley, in Aaronson v.State, 56 N.J.L. 10, very wisely says this: "There seems to be no reason why the procedure touching the general list and that touching the special list would not stand on the same footing. If one or more of the persons on the general list can be discharged from service, why not one or more be similarly discharged from the special list?" This learned justice continued: "Nor do we think there is any substance in the suggestion that the power thus conceded will be liable to be abused, for it is certain that the courts cannot arbitrarily and of its own motion excuse any of these jurors from serving in the given case; for if no ground for the dispensation existed the judicial action would be erroneous, and could be reviewed by means of a writ of error."
The far-sightedness and wisdom of these remarks had in view that it would be an arbitrary act on the part of the judge to excuse jurors without cause and to decimate the number of jurors of a special panel, from which the law entitled a defendant to select a jury, and thus to practically nullify the statutory right of a special panel of forty-eight jurors. For, if ten of forty-eight jurors of the special panel *Page 399 may be excused out of the general panel or special panel, then there seems to be no obstacle in the way of excusing the entire general panel. If ten may be excused why not forty-eight? And thus the defendant be compelled to select a jury from the general panel, contrary to the express mandate of the statute. Sections 82 and 83 were enacted for the purpose of guarding the rights of a defendant by acquainting him with the names of those persons who are to sit in judgment in his case and to give him an opportunity to inquire into an important feature necessary to secure to a defendant a fair and impartial trial — that is, to inquire into the jurors' competency, fairness and impartiality. I, therefore, think that the challenge should have been sustained.
I am also of the opinion that the exclusion of Minnie Martin, a sister of the defendant, who was offered as a witness on behalf of the defendant, was error. Upon an examination of this witness by the court in camera, in the presence of the defendant's counsel, the court said: "I am going to rule against the competency of this witness. My observation of her is that she is absolutely unable to control the movements of her body and the twitching, and, in my judgment, I do not think she is a competent witness." While it is true that the competency of the witness by reason of mental deficiency is one for the judge to determine, it cannot be done arbitrarily or capriciously, but there must be some evidence of mental incompetency, and here there was none. This brings me now to the errors assigned on the judge's charge to the jury. That the court wrongfully defined murder in the second degree is not attempted to be denied in the prevailing opinion. The answer being that the defendant was not harmed by the erroneous charge. What I have said in the dissenting opinion filed in State v. Mosley is applicable here, and need not be reiterated. The fact that the judges are continuing to give erroneous definition of murder in the second degree, which cannot be otherwise than prejudicial to a defendant, where the facts warrant a finding of a lesser degree, evinces a marked tendency to perpetrate error, notwithstanding the court's pronouncement in the matter, and, *Page 400 unless checked, will ultimately lead to flagrant miscarriages of justice. I may stop here for a moment to point out that this very definition of murder in the second degree was expressly repudiated by statute as early as March 6th, 1839. An epitome of the law of homicide in this state will not prove uninteresting.
An act passed February 17th, 1829, section 3, reads as follows: "That every person who shall commit murder, or shall aid, abet, counsel, hire, command, cause or procure any person or persons to commit murder, shall, on being thereof convicted or attainted, suffer death."
This section is declaratory of the common law. There were no degrees of murder at common law. The homicide was either murder or manslaughter. I find nothing in our statutes which sanctions two degrees of murder until the passage of the statute of March 6th, 1839. The first section of this act reads as follows: "That all 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, rape, sodomy, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury, before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree; but if such person shall be convicted on confession, in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly."
The act passed in 1839, defining murder, was incorporated in the Revision of 1847, section 4, page 258, which is as follows: "That all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premediated killing, or which shall be committed in perpetrating, or attempting to perpetrate, any arson, rape, sodomy, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder *Page 401 shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate, by their verdict, whether it be murder of the first or second degree; but if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime and give sentence accordingly." This classification of murder, with its elements, remains unaltered in the later revisions.
As has been said, there were no degrees of murder at common law. Criminal homicide was either murder or manslaughter. Manslaughter is defined at common law to be homicide without malice aforethought, whereas murder is defined as unlawful homicide with malice aforethought. The distinguishing feature between the two cases of homicide was the existence or non-existence of malice aforethought. At common law, every person who kills another is presumed to have willfully murdered him unless the circumstances are such as to raise a contrary presumption. From this we derive the legal rule in this state that the unlawful killing of a human being raises no greater presumption than that of murder in the second degree, which is nothing more than murder at common law. 1 East Cr. L. 214;Steph. Dig. Com. L., ch. 24, art. 223, p. 161; Steph. Cr.L. 170, says: "That unlawful killing with a deliberate intent to do slight bodily harm, which happens to cause death, is manslaughter, is a comparatively modern doctrine. By Coke's definition it would be murder." The change which was wrought by our statute in dividing murder into two degrees was a radical innovation in which constituted murder, involving capital punishment. It was a humane consideration of the subject in what class of cases the death penalty should be inflicted. And so the law-making power of this state and of every state in this union discarded the barbarous and harsh doctrine of the common law, and made it a condition precedent that before an accused could be convicted of murder in the first degree the act must be willful, must be premeditated, must be deliberate, accompanied with the specific intent to *Page 402 take life. If all these elements, namely, willfulness, premeditation and deliberation, with the specific intent to kill were present, they constituted murder in the first degree, but if any one of these constituents of murder in the first degree, with the exxception of intent to kill, was absent, and there was the intent to kill or to do grievous bodily harm, the crime is murder in the second degree.
One of the specifications for cause for reversal is that the trial court charged the jury as follows: "Under our law, if the accused at the time of committing the act was capable of distinguishing between right and wrong, and was conscious that the act was one which he ought not to have done, he cannot be excused on the ground of insanity. If he could distinguish between right and wrong, even if it shows that he was impelled to do what he did by an impulse which he was unable to resist, he is, nevertheless, responsible.
"Another point I might mention to you at this time, as suggested by counsel, under the law of this state, the insanity of a defendant cannot be used for the purpose of reducing his crime from murder in the first degree to murder in the second degree. If responsible at all, he is responsible in the same degree as a sane man, and if he is not responsible at all, he is entitled to an acquittal."
The trial judge practically instructed the jury that, unless the insanity was to such an extent as would warrant an acquittal on the ground of insanity, the jury could not, even if it found that the defendant was suffering from a diseased mind, convict him of the lesser degree of murder. This is not only absurd, but a barbarous proposition. This court held in Wilson v. State,60 N.J.L. 171 (at p. 184), the following: "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 state and condition 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 *Page 403 mental state is such that he is incapable of such deliberation and premeditation, then the crime has not been committed; there is a failure on the part of the state to prove the crime into which premeditation must enter." In the same case (at p. 185) this court approved what was said by Judge Depue in his charge to the jury in that case, which was as follows: "If the evidence is sufficient to satisfy the jury that the intoxication of the accused, at the time of the homicide was so great as to prostrate his faculties and render him incapable of forming the specific intent to kill, which is the essential ingredient of murder of the first degree, the prisoner will not be entitled to acquittal, but his offense will be murder in the second degree. You should carefully discriminate between that excitable condition of the mind produced by drink, which is not incapable of forming an intent, but determines to act on a slight provocation, and such prostration of the faculties by intoxication as puts the accused in such a state that he is incapable of forming an intention from which he shall act." It is an abhorrent idea to contemplate that in a case of intoxication resulting, even from the voluntary act of the person, if by reason of such intoxication his mind is in such a state that he cannot form an intent to take life or to deliberate, or to premeditate, a jury should take that factor into consideration and may convict him of murder in the second degree, whilst if a person is afflicted with a mental disease, the act of God, a jury may not take that factor into consideration on the question of premeditation, deliberation, willfulness or intent, and must convict the defendant of murder in the first degree if he fails to satisfy the jury that his mental condition was such that at the time of the commission of the act he did not understand the nature of the act which he was doing, and was unable to distinguish right from wrong. State v. Wilson expressly says that, if by reason of drunkenness or anyother cause, it appears that the mental state is such that he is incapable, c., the jury may convict him of a lesser degree of homicide. To hold a person suffering from a diseased mental condition, which leaves him powerless to control his acts, accountable to *Page 404 the same extent as one who lies in wait for his victim and kills him, is revolting to the conscience of the law as well as to all humane and just principles of an enlightened civilization. In another part of the charge the trial judge, in most emphatic language, instructed the jury that, unless the insanity was to such a degree as he defined it, even though the prisoner was insane at the time, it did not reduce his crime from murder in the first to murder in the second degree. For this reason alone the judgment should be reversed. In conclusion, I might say that I gather from the facts of this case, with the attendant atrocious circumstance of the hacking of the body of his daughter by her father, that the latter was the manifestation of manical frenzy of a madman. The inadequate cause for the commission of the deed, the absence of any serious quarrel between the father and daughter, the fact that she was his daughter, and that the deed was an unnatural one, the fact that he had some two or three years prior thereto attempted to take the life of his wife, indicate that he was afflicted with a homicidal mania, but not to the extent to excuse him under the law of this state from criminal responsibility, but not in the highest degree. He should have been restrained of his liberty, since he was a dangerous person to be let loose upon society, but that is no justification to deal with him in any other way than is sanctioned by the application of correct legal principles. I think, therefore, besides the grave errors committed by the trial judge, which misled the jury and call for a reversal, the facts of the case, under the legal rule applicable to them, did not warrant a verdict of a higher degree than that of second degree murder, and, therefore, the judgment should be reversed, and a new trial ordered. Justices Minturn, Campbell and Judge Kays authorize me to say that they concur in the views expressed in the dissent.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, BLACK, KATZENBACH, LLOYD, WHITE, GARDNER, VAN BUSKIRK, HETFIELD, JJ. 11.
For reversal — MINTURN, KALISCH, CAMPBELL, KAYS, JJ. *Page 405