State v. Brown

• Citation: 22 N.J. 405,126 A.2d 161
• Decision Date: 29 October 1956
• Docket Number: No. A--15,A--15
• Parties: The STATE of New Jersey, Plaintiff-Appellant, v. Warren Cleaver BROWN, Defendant-Respondent.
• Court: United States State Supreme Court (New Jersey)

Page 405

22 N.J. 405

126 A.2d 161

The STATE of New Jersey, Plaintiff-Appellant, v. Warren Cleaver BROWN, Defendant-Respondent.

No. A--15.

Supreme Court of New Jersey.

Argued Sept. 24, 1956.

Decided Oct. 29, 1956.

David R. Brone, Asst. County Pros., Atlantic City, for the State (Lewis P. Scott, County Pros., Atlantic City, on the brief).

Harry Miller, Atlantic City, for respondent.

The opinion of the court was delivered by

HEHER, J.

On May 16, 1956 the respondent was convicted by a jury of murder in the second degree on an indictment returned the prior February 8 charging that on April 17, 1951 he did 'wilfully, feloniously and of his malice, aforethought kill and murder Margaret Jones, also known as Margaret Brown.' Judgment was arrested, before sentence, for want of 'jurisdiction of the offense,' it was found, because of the supposed bar of the statute of limitations; and the case is here by the State's appeal under Article VI, Section V, paragraph 1(c) of the 1947 Constitution.

The homicide occurred April 17, 1951, in a dwelling in Egg Harbor Township, Atlantic County, New Jersey, where the accused and the victim had cohabited together for eight or nine years. Immediately after the killing, the accused placed the body in a closet of the house, and it was there concealed until its fortuitous discovery in the early Fall of 1955, the accused continuing to live in the house meanwhile. 'Murder, though it have no tongue, will speak!' When taken into police custody, on October 19, 1955, he confessed the killing and the concealment of the corpse. There was a brawl, he said, and he belabored the woman over the head with a broom handle. She fell to the floor and there remained, inert; he was soon asleep, and the next morning he found her dead. It was then that he made away with the body. He did not become a fugitive; and it is conceded there was nothing in his conduct that would toll the statute of limitations.

On November 3, 1955 the accused was indicted for manslaughter. The indictment charged a felonious killing of the deceased on April 18, 1950. It was Nolle prossed January 10, 1956, as charging a crime barred by the statute of limitations, but in the order to that end Judge Cafiero directed that the 'matter again be presented' to the grand jury 'for reconsideration at an early date.'

N.J.S. 2A:159--2, N.J.S.A. provided that 'except as otherwise expressly provided by law no person shall be prosecuted, tried or punished for any offense not punishable with death, unless the indictment therefor shall be found within 2 years from the time of committing the offense * * *.' Effective June 30, 1953, the period of limitation was enlarged to five years. L.1953, c. 204.

The State says that 'subsequent' to the return of the manslaughter indictment, it 'learned of the true date of the killing, resulting in the present indictment for murder' and trial 'on the basis of the homicide having occurred on April 17, 1951, a period of less than five years from the filing and entering of the present indictment.' It maintains, and this is acknowledged to be the pivotal issue, that the 'case comes within the statutory exclusion normally resulting in a bar to prosecution, because the offense for which the defendant was prosecuted and tried' was 'punishable with death.' The contention Contra is that 'murder in the second degree is a distinct and separate offense from murder in the first degree, carrying with it its own punishment,' and the 'punishment of the crime of second degree murder is barred by the statute of limitations.'

The indictment for murder charged an offense 'punishable with death' within the concept of N.J.S. 2A:159--2, N.J.S.A. Murder at common law is the unlawful killing of one person by another with malice aforethought, either express or implied, 'the grand criterion which distinguishes murder from other killing,' that is, any evil design in general, the dictate of a wicked, depraved and malignant heart; and it may be either express or implied in law. At common law as a general rule all homicide is malicious, and amounts to murder, unless where Justified by the command or permission of the law; Excused on the account of accident or self-preservation or Alleviated into manslaughter, by being either the involuntary consequence of some act, not strictly lawful, or (voluntary) occasioned by some sudden and sufficiently violent provocation. Manslaughter is the unlawful killing of another without malice, either express or implied, which may be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act. And at common law all homicide is presumed to be malicious until the contrary 'appeareth upon evidence.' 4 Blackstone's Com. sections 224, 229, 233. See also State v. Zellers, 7 N.J.L. 220 (Sup.Ct.1824); Graves v. State, 45 N.J.L. 347 (E. & A.1883); State v. Moynihan, 93 N.J.L. 253, 106 A. 817 (E. & A.1919); State v. Lederman, 112 N.J.L. 366, 170 A. 652 (E. & A.1934); Rex v. Oneby, 2 Ld.Raym. 1485, 92 Eng.Repr. 465 (1898); State v. McGuire, 84 Conn. 470, 80 A. 761, 38 L.R.A.,N.S., 1045 (Sup.Ct.Err.1911); People v. Lytton, 257 N.Y. 310, 178 N.E. 290, 79 A.L.R. 503 (Ct.App.1931); Com. v. York, 9 Metc., Mass., 93 (Sup.Jud.Ct.1893); 1 Hale, P.C., p. 45 (1680); 1 Hawkins, P.C., c. 31, s. 3 (1787); 3 Inst., pp., 47, 50; and 38 L.R.A.,N.S., 1054 et seq., 1092 et seq. 1103; Wharton's Criminal Law (12th ed.), sec. 419.

Thus, manslaughter is an offense distinct from and not a degree of murder. See State v. White, 41 Iowa 316 (Sup.Ct.1875). Murder in the second degree is distinguished from manslaughter by the element of malice, essential to the former but not the latter. State v. Guild, 10 N.J.L. 163 (Sup.Ct.1828). At common law murder is not divided into degrees. A distinction between express and implied malice has been found in the deliberate intent or formed design which is an element of express malice, but at common law there is no such difference in the grade of the offense; it is murder however the given state of mind may be categorized, a condition of mind ordinarily a matter of inference from the circumstances, and the penalty is death, although, says Blackstone, the punishment of murder and that of manslaughter were formerly one and the same, both having the benefit of clergy; but the privilege of exemption from capital punishment was later taken away by statute from murders through malice prepense. 4 Blackstone's Com. section 234.

All this reveals the essential quality of murder as a single offense, divided by the statute, N.J.S. 2A:113--1, 2A:113--2, N.J.S.A., into degrees, first and second, for the purpose of punishment alone, according to the gravity and heinousness of the felonious act, the moral obliquity that determines the difference between express and implied malice. State v. Cooper, 2 N.J. 540, 67 A.2d 298 (1949). These statutes have not altered the nature of murder at common law; they are concerned only with the character of the punishment; the degrees do not constitute separate and distinct crimes, but merely grades of the same offense. Murder in either of the statutory degrees is murder at common law.

Such was the holding of the Court of Errors and Appeals in the early case of Graves v. State, cited supra: the Legislature, 'in declaring what shall constitute murder of the first degree and what murder of the second, created no new crimes, but merely made a distinction, with a view to a difference in the punishment, between the most heinous and the less aggravated grades of the crime of murder'; that which was 'murder at the common law was, after the statute, still murder here, but the most flagitious species was designated as the highest degree and visited with the extreme penalty, while all others were declared to constitute a lower class and to be punishable accordingly'; the simplified form of indictment provided for a charge of 'murder * * * in language sufficient to designate it'; and it was also provided, accordingly, that if the jury should find the accused 'guilty of murder,' the verdict should designate the degree, first or second; the statute 'did not make murder of the first degree a separate and distinct crime from murder of the second, but murder of each grade, after the passage of the statute, continued to be, as it had theretofore been, the crime of murder'; and the indictment in the statutory form charges 'murder,' a 'wilful and felonious killing, by him, of the deceased, of his malice aforethought.' The degree upon conviction determines the punishment only, according to the circumstances.

See also State v. Phillips, 118 Iowa 660, 92 N.W. 876 (Sup.Ct.1902); State v. Gunn, 89 Mont. 453, 300 P. 212 (Sup.Ct.1931); State v. Woodson, 244 Iowa 1262, 59 N.W.2d 556 (Sup.Ct.1953), certiorari denied 347 U.S. 907, 74 S.Ct. 433, 98 L.Ed. 1065 (1953); State v. Hutter, 145 Neb. 798, 18 N.W.2d 203 (Sup.Ct.1945).

As noted in State v. Cooper, supra, a killing which constitutes murder at common law or under the statute is presumed to be murder in the second degree; and the burden is laid upon the State to establish circumstances rendering it murder of the first degree under the statute. In a word, the offense of murder remains as it was at common law before the statute; the distinction of degree has reference merely to a difference in punishment. The most perverse are punishable by death or life imprisonment, in the discretion of the jury; the less so in moral turpitude, by moderate punishment. But it is of the very nature of the statutory scheme that the jury adjudge the degree of guilt and thereby the character and degree of the punishment. See State v. Greely, 11 N.J. 485, 95 A.2d 1 (1953); State v. Pontery, 19 N.J. 457, 117 A.2d 473 (1955). 'Murder' is a 'technical term which denotes a distinct and definite crime at common law, * * *.' State v. Patriarca, 71 R.I. 151, 43 A.2d 54, 160 A.L.R. 387 (Sup.Ct.1945). It 'continues to be a capital...