I entertain the view that the refusal to charge the entire content of the accused's request specifically affirming the propriety of considering the evidence bearing upon his mental condition at the time of the homicide, in the performance of the jury's function of determining the penalty upon a finding of murder in the first degree, constituted prejudicial error. In a word, the trial judge refused a direction that, if the jury found that, at the time of the killing, the prisoner "suffered from some mental irregularity or abnormality short of legal insanity," they would be "justified in giving this due consideration in determining the punishment."
Under the statute, every person convicted of murder in the first degree shall suffer death, unless the jury shall by their verdict, and as a part thereof, "upon and after consideration of all the evidence," fix the punishment at life imprisonment.R.S. 2:138-4. Upon this inquiry, the jury are not limited to a consideration of some specific phase of the evidence, or under a duty to put aside evidence that is inadequate to sustain the particular defense to which it is directed; they are obliged to consider all the evidence introduced at the trial.
I am unable to concur in the theory that the design of the amendment of 1919 was, without more, "to so accommodate the law to the psychology of the jurors that convictions of first degree murder might be reached when deserved." I do not believe it was within legislative contemplation that the jury should exercise the granted power arbitrarily, but rather to prescribe life imprisonment as the punishment where there are in the particular circumstances elements which, in their *Page 338 sound discretion, call for a mitigation of the full rigor of the law. Is not this implicit in the amendment confining the jury to the evidence in the cause in the fixation of the punishment? If the purpose merely was the inducement of a verdict of first-degree murder where the particular jury, or one or more of its members, would be otherwise deterred therefrom by objection to the death penalty, why was the amendment deemed necessary at all? It was pointed out by Judge White in his dissenting opinion in State v. Martin, 92 N.J.L. 436, that the original act of 1916 followed futile efforts to abolish capital punishment; and it is not to be presumed that the legislature intended, by the amendment, to leave that still to the mere whim or caprice of the jury in the individual case. Rather, I think the amendment was written in the light of Chancellor Walker's dissenting view that in the exercise of this function under the original act, the jury "should be guided by the evidence, and, where mitigating circumstances appear in the evidence, the recommendation to imprisonment for life may, with propriety, be made, but where the murder is without palliation or mitigation that the recommendation should be withheld." I am clear, however, that considerations apart from mitigating or extenuating circumstances in the crime itself may serve thus to qualify the verdict if they arise out of the evidence, or lack of evidence, as revealed on the trial of the cause. Mental deficiency or illness might well justify that course, in the exercise of a sound discretion, even though the prisoner was capable of distinguishing between right and wrong; and this would be within the intendment of the statute. The statutory discretion is to be exercised upon a view of the evidence as a whole. The issue is committed to the judgment and consciences of the jury; and the inquiry is whether, under all the circumstances disclosed by the evidence, it would serve the interests of justice, as between society and the accused, if capital punishment were not imposed. CompareWinston v. United States, 172 U.S. 309; 19 Sup. Ct. 212;43 L.Ed. 456. Conscientious scruples against the imposition of the death penalty, or matters dehors the evidence, have no place in the discharge of this function. Plainly, such were not within the legislative view. *Page 339
The instruction given here was merely in the general language of the statute; and I conceive it to have been the prisoner's right, if he chose to exercise it, as indeed he did, to have a specific adaptation of the statutory principle to the particular circumstance. The rejected request was directed not to the placing of emphasis upon a special fact or circumstance, but the elucidation of the ruling principle. In resolving whether the death penalty should be exacted, could the jury consider evidence establishing mental abnormality falling short of legal insanity? Confusion and misapprehension as to the quality and scope of the principle is only too likely when the statutory meaning is conveyed by terms which are vague and uncertain; and specification is the antidote. The sphere of the jury's power in a matter of such gravity should be so explicitly delineated that there can be no occasion or opportunity for misunderstanding. Such is the absolute right of the accused. Is it more important to instruct the jury as to the constitutional power of the Court of Pardons to terminate life sentences than to clarify doubts as to the power of the jury itself in the resolution of a question of such moment? I think not.
Mr. Chief Justice Brogan and Mr. Justice Colie join in this opinion.
For affirmance — THE CHANCELLOR, PARKER, CASE, BODINE, DONGES, PERSKIE, RAFFERTY, DILL, FREUND, JJ. 9.
For reversal — THE CHIEF JUSTICE, HEHER, COLIE, WELLS, JJ. 4. *Page 340