State v. Canola

• Decision Date: 07 April 1977
• Citation: 73 N.J. 206,374 A.2d 20
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Leonel CANOLA a/k/a Leon Vasquez, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 206

73 N.J. 206

374 A.2d 20

STATE of New Jersey, Plaintiff-Respondent, v. Leonel CANOLA a/k/a Leon Vasquez, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Sept. 27, 1976.

Decided April 7, 1977.

Edward P. Hannigan, Asst. Deputy Public Defender, for defendant-appellant (Stanley C. Van Ness, Public Defender, attorney).

James Mayer, Asst. Prosecutor, for plaintiff-respondent (Joseph C. Woodcock, Jr., Bergen County Prosecutor, attorney).

Andrea R. Grundfest, Asst. Prosecutor, for amicus curiae (William F. Hyland, Atty. Gen., attorney); David S. Baime and John J. De Cicco, Deputy Attys. Gen., of counsel).

The opinion of the court was delivered by

CONFORD, P.J.A.D., Temporarily Assigned.

Defendant, along with three confederates, was in the process of robbing a store when a victim of the robbery, attempting to resist the perpetration of the crime, fatally shot one of the co-felons. The sole issue for our resolution is whether, under N.J.S.A. 2A:113--1, defendant may be held liable for felony murder. A divided part of the Appellate Division determined the question in the affirmative. 135 N.J.Super 224, 343 A.2d 110 (1975). Because of the dissent, the appeal is here as of right. R. 2:2--1(a).

The facts of this case are adequately stated in the opinion of the Appellate Division. 135 N.J.Super. at 227--229, 343 A.2d 110. For purposes of this determination they may be summarized as follows. The owner of a jewelry store and his employee, in an attempt to resist an armed robbery, engaged in a physical skirmish with one of the four robbers. A second conspirator, called upon for assistance, began shooting, and the store owner returned the gunfire. Both the owner and the felon, one Lloredo, were fatally shot in the exchange, the latter by the firearm of the owner.

Defendant and two others were indicted on two counts of murder, one count of robbery and one count of having been armed during the robbery. The murder counts were based on the deaths, respectively, of the robbery victim and the co-felon. After trial on the murder counts defendant was found guilty on both and was sentenced to concurrent terms of life imprisonment. The Appellate Division unanimously affirmed the conviction for the murder of the robbery victim, and this court denied a petition for certification addressed thereto. However, when the Appellate Division majority upheld the trial court's denial of a motion to dismiss the count addressed to the homicide of the co-felon, Judge Handler dissented.

Conventional formulations of the felony murder rule would not seem to encompass liability in this case. As stated by Blackstone about the time of the American Revolution, the rule was: 'And if one intends to do another felony, and undesignedly kills a man, this is also murder.' 4 Blackstone, Commentaries 200--201; and see The State v. Cooper, 13 N.J.L. 361, 370 (Sup.Ct.1833); State v. Madden, 61 N.J. 377, 384, 294 A.2d 609 (1972). In such case the felonious intent supplies the malice requisite for murder. Ibid. A recent study of the early formulations of the felony murder rule by such authorities as Lord Coke, Foster and Blackstone and of later ones by Judge Stephen and Justice Holmes concluded that they were concerned solely with situations where the felon or a confederate did the actual killing. Comment, 24 Rutgers L.Rev. 591, 600--601 (1970); and see Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 480 (Sup.Ct.1970). Contrary to the division of view in the modern American cases on the point (see Infra), it has been observed that the English courts never applied the felony murder rule to hold a felon guilty of the death of his co-felon at the hands of the intended victim. Prevezer, 'The English Homicide Act: A New Attempt To Revise The Law Of Murder', 57 Col.L.Rev. 624, 634 (1957); and see Comment, ubi cit. supra, 24 Rutgers L.Rev. at 600--601.

The precise issue in the present case is whether a broader concept than the foregoing--specifically, liability of a felon for the death of a co-felon effected by one resisting the felony--is required by the language of our statute applicable to the general area of felony murder. N.J.S.A. 2A:113--1. This reads:

If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, Or if the death of anyone ensues from the committing or attempting to commit any such crime or act; or if any person kills a judge, magistrate, sheriff, coroner, constable or other officer of justice, either civil or criminal, of this state, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty, or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, Then such person so killing is guilty of murder. (emphasis added).

This statute is traceable substantially intact to the Law of March 18, 1796, § 66, N.J.Laws (1701--1820) 262. The only substantive changes have been the inclusion of kidnapping among the felonies specified and the excision of the original prescription of punishment by death. The Appellate Division majority was of the view that the above-emphasized portion of the statute, referred to by it as the 'ensues clause', compelled the result it arrived at. It said (135 N.J.Super. at 235, 343 A.2d at 116):

* * * We think it is clear that the clause was not intended to be mere surplusage where it appears that the other provisions of the statute, standing alone, embody the concept of felony murder under the common law. Such an interpretation would violate one of the cardinal rules of statutory construction that full force and effect must be given, if possible, to every word, clause and sentence of a statute.

* * * In our view the statute indicates an intention on the part of the Legislature to extend criminal responsibility beyond that imposed upon a felon at common law and to hold liable all participants in an armed robbery for deaths which occur during the commission of the crime. ¹

Judge (now Justice) Handler, in dissenting, cited the decisions representing the majority view in those other jurisdictions which had considered the general question, and said they hold that 'a felon cannot be found guilty for the death of an accomplice occurring during the commission of the felony.' 135 N.J.Super. at 236, 343 A.2d at 117. As to the ensues clause of the statute, Judge Handler stated (Id. at 237--238, 343 A.2d at 117--118):

In my view the 'ensues clause' is not the catalyst which transmutes criminal culpability in the context of a felony-murder from agency to proximate cause. No cogent argument has been presented that, by the inclusion of the language of the 'ensues clause,' the Legislature intended to affix criminal responsibility upon a felon for murder in the highest degree for the justifiable, accidental or unintended death of a co-felon on the theory of proximate cause. Rather, the purpose of the 'ensues clause' would appear to be a legislative attempt to insure a broadened scope of criminal responsibility with respect to a defendant who, as a primary actor or in concert with or through the criminal agency of another, actually or constructively, but in furtherance of the felony, causes the death of another person.

While the statute, even without the 'ensues clause,' might well be so interpreted and applied, it was within the legislative province to give unmistakeable and emphatic expression of this intent. It does not follow, therefore, as thought by the majority and expressed in State v. Burton, 130 N.J.Super. 174, 325 A.2d 856 (Law Div. 1974), that the 'ensues clause' is mere surplusage and acquires a sensible meaning, together with the final phrase of the statute, only upon a thesis of proximate cause. On the contrary, in my view the 'ensues clause' underscores a legislative intent, in defining felony murder, to expand the class of victims whose death might occur in the course of a felony and to cover killings which might otherwise be considered too distantly connected with the felony, provided they fall within its Res gestae. So understood, the entire statute makes reasonable sense when limited only to a defendant who actually participates in the killing, or does so through the agency of a partner in the crime, whether as a principal or an aider and abettor, whether directly or indirectly, by acts or conduct in furtherance of the commission of the felony.

For reasons to be more fully explicated, we are in accord with the conclusion arrived at in the dissent.

Before attempting, through analysis of the statutory language itself, a resolution of the contrasting views of the statute entertained below, it will be helpful to survey the progress of the pertinent law in the other American jurisdiction. Preliminarily, however, it seems significant of the contemporaneous and subsequent general assessment of the meaning of the ensues clause in our statute that prior to the past decade, and over the long period of its presence in our statute books, there is no apparent evidence that any felon was ever charged with murder for a death at the hands of persons not associated with the felonious undertaking. Cf. Pringle v. N.J. Dept. of Civil Service, 45 N.J. 329, 332--333, 212 A.2d 360 (1965); Kingsley v. Hawthorne Fabrics, Inc., 41 N.J. 521, 528, 197 A.2d 673 (1964).

It is clearly the majority view throughout the country that, at least in theory, the doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the...