I am in accord with the majority opinion except in so far as it holds the verdict rendered by the jury was insufficient, the sentence illegal and the judge did not have jurisdiction to pronounce the sentence of death.
R.S. 2:138-2 defines the degrees of murder, designating those "perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated *Page 561 killing, or which shall be committed in perpetrating or attempting to pertrate 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; and thejury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof designate bytheir verdict whether it be murder in the first degree or seconddegree." (Italics supplied.)
Clearly it was not the legislative intention to require a jury to designate in its verdict the degree of murder when by clear, definite language it provided that a killing done in the perpetration of a robbery is murder in the first degree. There is an old maxim, true today, "The law commands not useless things; for useless things are folly." Neither does it require a futility or a nullity.
Where in the trial of an indictment for murder, the elements of willfulness, deliberateness and premeditation must be proven to raise it to one of first degree from the presumption that a killing which constitutes murder at common law is murder in the second degree the jury must by its verdict say whether those elements have been so proven, for unless the homicide is committed in perpetration, or attempting to perpetrate one of the felonies named in the statute the killing must be willful, deliberate and premeditated in order to render it murder in the first degree. State v. Turco, 98 N.J.L. 61 (Sup. Ct. 1922), citing State v. Deliso, 75 Id. 808 (E. A. 1908). But in the absence of a plea of insanity the state of mind of a defendant is not in issue where a human being is killed in the perpetration of a robbery. State v. Roach, 119 N.J.L. 488 (E. A. 1938).
It is said, the indictment here being in the statutory form, the jury could have returned either a first or second degree verdict. Not so. The theory of the case on the part of the State, acquiesced in by counsel for the defendants, and all of the State's proof was that the killing was done in the perpetration of a robbery while the defense was a complete denial. It was either statutory first degree murder or nothing. The court properly charged the defendants could be found guilty *Page 562 of murder in the first degree, murder in the first degree with recommendation of life imprisonment or not guilty. There was no objection to this and such a charge has been approved many times.State v. Roach, supra; State v. Gimbel, 107 N.J.L. 235 (E. A. 1930); State v. Hauptmann, 115 N.J.L. 412 (E. A. 1935). In State v. Giampietro, 107 N.J.L. 120 (E. A. 1930), it was held a request to charge in the following language: "Under this indictment for murder a defendant may be convicted of murder in the first degree, murder in the second degree, or manslaughter as the evidence may show" was properly refused. The court said: "The proofs were all to the effect that the killing was in an attempt to commit a robbery. There was no other alternative, and, that being true the section of the Crimes Act which makes a killing under such circumstances murder in the first degree, eliminated both second degree and manslaughter."
While State v. Turco, supra, appears to bear out the argument contained in the majority opinion that was not a pronouncement of the court of last resort and I am not inclined to follow it. That decision rested on the proposition that the indictment would have supported a verdict of second degree murder, entirely ignoring the statutory mandate making a killing done in the perpetration of a robbery murder in the first degree.
The verdict of "guilty" as returned by the jury was sufficient under the proofs, the charge of the court and the law to designate this murder as that of "first degree."
OLIPHANT, J., concurring in result.
For reversal — Chief Justice VANDERBILT, and Justices CASE, HEHER, WACHENFELD, BURLING and ACKERSON — 6.
For affirmance — None. *Page 563