State v. Greely, s. A--88

• Decision Date: 24 February 1953
• Docket Number: Nos. A--88,A--89,s. A--88
• Citation: 95 A.2d 1,11 N.J. 485
• Parties: STATE v. GREELY et al.
• Court: New Jersey Supreme Court

Page 485

11 N.J. 485

95 A.2d 1

STATE v. GREELY et al.

Nos. A--88, A--89.

Supreme Court of New Jersey.

Argued Feb. 2, 1953.

Decided Feb. 24, 1953.

Frederick Klaessig, Newark, argued the cause for appellant John greely.

Edward J. Madden, Jersey City, argued the cause for appellant Cyril Deady (Edward M. Malone, Jersey City, attorney).

Frank J. V. Gimino, Asst. Prosecutor of Hudson County, Jersey City, argued the cause for the State (Horace K. Roberson, Prosecutor of Hudson County, Bayonne).

The opinion of the court was delivered by

WACHENFELD, J.

Greely and Deady were indicted and convicted of murder and, in compliance with the recommendation made by the jury, were sentenced to life imprisonment.

The indictment charged the defendants, on the 8th day of November 1951, 'did wilfully, feloniously and of their malice aforethought kill and murder Selacius Klein, against the peace of this State, the government and the dignity of the same.'

Answering a bill of particulars, the State used practically the same statutory phraseology employed in the indictment but added 'in the commission of a robbery.'

The locale of the crime and some of the surrounding circumstances, according to the defendants' version, were not too pleasant.

Klein was the General Superior of the Order of Brothers of the Poor of St. Francis. He was 71 years of age and came to Hoboken with three other brothers of the Order in the early afternoon of November 8, 1951. They went to St. Mary's Hospital around 3 P.M. and were there a short while, when Klein left and went to the public toilet in Church Square Park, which is diagonally across the street from the hospital.

When he entered, both defendants were there. Greely struck him in the mouth with his hand, describing it as 'a light slap in the jaw.' The deceased left but returned shortly. Deady then 'grabbed him by the arms' and Greely 'reached into the pockets of his pants and took some money.'

Both defendants denied the victim fell, but a witness for the State who entered shortly thereafter and saw Klein lying on the floor described him as 'apparently sleeping.' The money taken from him amounted to $18, which admittedly was divided between the two defendants.

Klein recovered at least sufficiently to permit his leaving the place, as he returned to St. Mary's Hospital and rejoined his companions. His trousers were torn and he borrowed a needle and thread to mend them. The four brothers left St. Mary's Hospital around 5 P.M. and went to St. Francis Hospital in Jersey City to keep a dinner engagement. It was then noticed Klein had suffered an injury to his lip, and he was treated at the hospital clinic.

After dinner one of the brothers observed Klein looked rather sick and was 'slumped over in his chair a little bit.' He become very ill around 7 P.M. and lapsed into unconsciousness at 9 P.M. He died at 10:25 on the following Saturday morning without ever having regained consciousness.

There was evidence that the death occurred as the result of injuries inflicted during the robbery, of which more hereafter.

The trial court instructed the jury in its charge it should not consider murder in the second degree or manslaughter; that the murder involved was perpetrated in the commission of robbery and was therefore murder in the first degree. The jury was limited in returning a verdict of guilty of murder in the first degree, which it was instructed would carry with it the death penalty unless life imprisonment were recommended, or a verdict of acquittal. No instructions were given as to the statutory obligations of designating by its verdict the degree of murder on which it had decided.

The jury returned a verdict of 'guilty as charged, with a recommendation of life imprisonment.'

Both defendants appeal, presenting the question of the propriety of the verdict so returned, and the inquiry is whether or not error was committed in the court's accepting a verdict from the jury of 'guilty as charged, with a recommendation of life imprisonment.'

The applicable statute is N.J.S. 2A:113--2, N.J.S.A.:

'Murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which is committed in perpetrating or attempting to perpetrate arson, burglary, kidnapping, rape, robbery or sodomy, is murder in the first degree. Any other kind of murder is murder in the second degree. A jury finding a person guilty of murder shall designate by their verdict whether it be murder in the first degree or in the second degree.'

The adjudications construing this mandatory provision are clear and precise. In State v. Turco, 98 N.J.L. 61, 118 A. 579, 580 (Sup.Ct.1922), cited and followed in the other cases hereafter mentioned, the court, referring to the statute, said:

'* * * a verdict * * * which fails to designate the degree of murder of which the jury find the defendant guilty, is so fatally defective that no judgment can be legally pronounced thereon.'

In State v. Cooper, 2 N.J. 540, 67 A.2d 298, 302, (1949), it was expressed thusly:

'It is not a sufficient answer to say that the theory of the State was a killing in the perpetration or attempted perpetration of a robbery by the accused; and that this was the issue submitted to the jury for determination, and the alternative to acquittal under the charge was a conviction of murder in the first degree. First, the statute is imperative in its command that, if the accused be found guilty, the jury shall determine whether the offense be murder in the first degree or in the second degree * * *.'

And again:

'Not only is it understandable that the Legislature deemed it essential that in resolving an issue involving the death penalty or life imprisonment, the finding be specific and not left to conjecture; it is inconceivable that it would not have so provided.'

In State v. Cleveland, 6 N.J. 316, 78 A.2d 560, 564, 23 A.L.R.2d 907 (1951), embracing what was siad in State v. Cooper, supra, we repeated:

"A finding of circumstances constituting murder of the first degree is not to be annexed to a verdict of 'guilty' by intendment or a presumption based upon the evidence. That is a solemn obligation of the jury in a matter of the utmost gravity; and its fulfillment cannot be made to rest on bare inference'.'

True, these cases involved the infliction of a death penalty, but the doctrine as enunciated in the Cooper case, supra, referred also to 'an issue involving the death penalty or life imprisonment.'

It is the duty of the jury to find a verdict in compliance with the statutory mandate, and the degree of murder of which the defendant is guilty is a specific prerequisite. It has been termed by our judicial pronouncements 'a solemn obligation of the jury in a matter of the utmost importance' and the statute was classified as being 'imperative in its command.'

Can the rule be otherwise where the death penalty was absent and the sentence imposed life imprisonment? We think not. The wording and the demands of the statute are still the same. The obligation placed upon the jury was implicit. The necessity for following it has been expressed in strong and forceful language and it has already been held as applying to the sentence of life imprisonment. State v. Cooper, supra.

There was error in failing to comply with the legislative mandate, requiring a reversal of the judgment below.

Deady's appeal was limited to the above issue, but inasmuch as a new trial will be necessary as to both defendants, we feel obligated to pass upon the other points raised by the defendant Greely so the court below will have the benefit of the ruling so made on the trial De novo.

It is contended error was committed in denying the defendant's motion for an acquittal as the facts established by the State did not prove the crime charged in the indictment, stressing the failure to prove the Corpus delicti and a connection between the robbery and the homicide, asserting if the defendant's statement is true, 'then the deceased was engaged in a provocative behavior inviting further inquiry' and 'if there was a homicide it was committed by strangers.'

There is little merit to the suggestion so advanced. In felonious homicide the Corpus delicti consists of two fundamental and necessary facts: death and the criminal agency causing it.

Professor Wigmore's elaborate definition of the term 'corpus delicti' is embodied and restated verbatim in State v. Klausner, 4 N.J.Super. 427, 67 A.2d 468 (App.Div.1949), and needs no further elucidation.

The State's theory was the defendants robbed the deceased at the time and place alleged in the indictment and in the robbery inflicted injuries upon him which resulted in his death.

The robbery of the deceased by the defendants is admitted; the assault is not disputed, although its violence is minimized. Dr. Braunstein was definite in his conclusions that 'there is no question at all but that the hemorrhage was due to the injury. * * * We found even more important...