We dissent and briefly state our reasons why we believe the trial judge in his charge to the jury committed no error in this case. In any event, the error, if any, should be disregarded in accordance with the command of the Legislature that where error does not materially affect the guilt of the defendant it must be disregarded. (Code Crim. Proc. § 542.) As fairly stated in the majority opinion, "upon this record there can be no doubt that the jury was fully justified in finding the defendant Edward Hicks guilty of murder in the first degree * * *." Indeed, counsel for the defendant, in his summation to the jury, pleaded with the jury to bring in a verdict of murder in the first degree with a recommendation of life imprisonment, thereby conceding guilt.
The error urged as a reason for reversing this conviction must be viewed against the background of the facts found by the jury. For the purpose of robbery the defendant bludgeoned a storekeeper into insensibility with a part of a steel axle, and then, fearful lest, still living, the storekeeper might identify his assailant, cut his throat with a knife which had been specially sharpened for that purpose. The majority opinion of the court concedes that the trial court properly charged the jury that they must first determine the guilt of the defendant. This is and always has been the primary inquiry of a jury in a criminal case. In arriving at a verdict of guilty the vote of the jury must be unanimous, and, in that sense, it may be said that each juror convicts the defendant. In this case, in connection with the finding of guilt, the court was careful to state: "* * * unless you desire to change your mind on the evidence — which you are at liberty to do before you report your verdict * * *." By this charge of the court the jurors were instructed that, although they had agreed on a verdict of guilty, if, while *Page 176 they were discussing the recommendation for life imprisonment, additional light was thrown on any evidence, any member of the jury could prevent a verdict by changing his vote on the question of guilt up to the moment of reporting the verdict to the court.
By its very nature the question of a recommendation of life imprisonment, since it affects punishment and not guilt, necessitates that it be considered by the jury after the question of guilt has been established. This is so not only because of the nature of the recommendation, but also because of the provisions of the Code of Criminal Procedure (§ 420) providing that the jury, in determining the question of guilt, must not consider punishment.
An analysis of the entire statute leads to the same conclusion, namely, that only after the jury has found the defendant guilty may a recommendation of mercy be considered. Section 1045 of the Penal Law provides that murder in the first degree is punishable by death, unless the jury recommends life imprisonment, as provided by section 1045-a. Thus the statute commands the jury to do just what the trial justice charged. The verdict of guilty must prevail unless the jury makes a recommendation as it may do pursuant to section 1045-a.
We come then to a consideration of the intention of the Legislature in enacting section 1045-a of the Penal Law. That section provides: "A jury finding a person guilty of murder in the first degree, * * * may, as a part of its verdict, recommend that the defendant be imprisoned for the term of his natural life * * *." Upon its face this statute merely gives to the jury the authority to recommend life imprisonment as punishment for the crime of felony murder. The exercise of the power granted to the jury is expressly made permissive by the words of the statute. However, should the jury elect to exercise this permissive power they must do so in the only way in which a jury may act in a criminal case, i.e., by unanimity. The Legislature has so provided, since the recommendation is made as a part of the verdict. It follows that if the jury *Page 177 is unable to agree upon this mitigation of punishment the recommendation fails because the jury has not acted in the only way in which a jury can give itself expression. (People v.Gati, 279 N.Y. 631.)
A majority of the court would have us say that the Legislature, in granting this permissive power to the jury, meant also that unless the jury should reach an agreement in reference to this mitigation of punishment, no verdict of guilt can be had. The statute does not so provide, and it is submitted that in the absence of any language in the statute lending itself to that construction, no intention of the Legislature to that effect should be inferred. It is the function of the court to read the statute as it was written by the Legislature. The Legislature has modified the rigidity of our Penal Law by providing that a unanimous jury may, by its recommendation, save the defendant from the punishment of death, but it has not gone further and provided that a defendant guilty of murder in the first degree may avoid conviction because a single member of the jury does not concur in refusing to recommend leniency.
A majority of the court are using the words "as a part of its verdict" to mean not only as a part of the verdict, which would be satisfied by an accompanying recommendation unanimously agreed upon, but also to include a meaning that the verdict of guilty although found by the jury cannot continue to prevail until the jury either votes a recommendation unanimously or unanimously fails so to do. An examination of this decision reveals that if the court holds that the jury must be unanimous on the question of the recommendation and can make no finding of guilt unless they also either make or unanimously reject a recommendation for mercy, then, although the jury unanimously finds a defendant guilty of murder in the first degree, no verdict may be had if one juror, although he agrees that the defendant is guilty of felony murder, insists upon voting for a recommendation for life imprisonment. The practical effect of this decision is that the jury must be discharged (Code Crim. Proc. § 428), and the defendant *Page 178 who has been found guilty of murder in the first degree by all twelve of the jurors goes back for a new trial or goes free if no jury can be found which will vote unanimously on both questions. Surely such a result could not have been intended by the Legislature.
A more reasonable intention of the Legislature in enacting section 1045-a of the Penal Law was pointed out by the Governor in his message to that body. In that message the Governor stated that the power to make a recommendation, if given to the jury, would make it easier to convict defendants in felony murder cases since it would "permit the jury to fit its verdict to what it may consider to be the varying degrees of moral guilt of the persons involved in the same crime." To us this indicates that it was never the legislative intent in enacting section 1045-a of the Penal Law to accord this benefit of a recommendation of life imprisonment to the actual killer at all, but rather to permit the jury to fit its verdict to the varying degrees of participation in the crime. Moreover, if the statute is read in accordance with the construction of the majority of the court, then felony murder becomes the most difficult crime in which to obtain a conviction, because even if the defendant is found to be guilty by all twelve of the jurors no verdict can be rendered unless there is also unanimity upon the question of the punishment to be meted out to the criminal. Neither reason nor authority compels this conclusion.
In People v. Gati (279 N.Y. 631) the precise question presented by this case was before this court and was the only point urged in the brief of defendant-appellant Gati. The proper objections and exceptions had been taken. The judgment there was affirmed, three judges voting to affirm under section 542 of the Code of Criminal Procedure. Counsel in the Gati case, just as did counsel in the case at bar, made no attempt to excuse the guilt of the defendant, the defense consisting entirely of an appeal to the jury for the purpose of obtaining from them a recommendation of life imprisonment. *Page 179
The judgment appealed from should be affirmed.
LOUGHRAN, RIPPEY and DESMOND, JJ., concur with LEHMAN, Ch. J.; FINCH, J., dissents in opinion in which LEWIS and CONWAY, JJ., concur.
Judgment of conviction reversed, etc.