State v. Johnson

• Decision Date: 20 July 1972
• Citation: 294 A.2d 245,61 N.J. 351
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Craig JOHNSON, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 351

61 N.J. 351

294 A.2d 245

STATE of New Jersey, Plaintiff-Appellant, v. Craig JOHNSON, Defendant-Respondent.

Supreme Court of New Jersey.

Argued June 5, 1972.

Decided July 20, 1972.

Elson P. Kendall, Asst. Prosecutor, for appellant (Karl Asch, Union County Prosecutor attorney; Michael H. Kessler, Asst. Prosecutor, on the brief).

John De Cicco, Deputy Atty. Gen., as amicus curiae for State of New Jersey (George F. Kugler, Jr., Atty. Gen.)

Herbert I. Waldman, Asst. Deputy Public Defender, for respondent (Stanley C. Van Ness, Public Defender, attorney; Robert L. Martin, Asst. Deputy Public Defender, on the brief).

The opinion of the Court was delivered by

FRANCIS, J.

The Union County Grand Jury indicted defendant Johnson for murder, and shortly thereafter he applied to be released on bail pending trial. On July 29, 1971 following a hearing the trial court found there was a fair likelihood that Johnson was in danger of a jury verdict of first degree murder, and therefore he was not entitled to bail. State v. Konigsberg, 33 N.J. 367, 164 A.2d 740 (1960).

Subsequently this Court in State v. Funicello, 60 N.J. 286 A.2d 55, cert. den. sub nom New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849; 33 L.Ed.2d 766 (1972), pursuant to a mandate of the United States Supreme Court, ruled that the death penalty provision of the New Jersey homicide statute was invalid. It then appearing that if upon trial Johnson was found guilty of murder in the first degree he could not be sentenced to death, his motion for bail was renewed. The motion was granted and a further hearing ordered to fix the amount of bail. On the State's application we stayed the proceeding and granted leave to appeal directly to this Court so that the validity of the bail order might be considered at the same time as State v. Lyle, 61 N.J. 179, 293 A.2d 656 (1972), decided today.

Article I, par. 11 of the Constitution deals specifically with the matter of bail. It provides All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great. ¹

As we indicated in Konigsberg, at common law in England and in this country, including New Jersey, the grant of bail in All cases rested in the discretion of the courts. Apparently because of the harsh attitude of judges on the subject various States began to include liberal provisions for bail in their early Constitutions. Connecticut, the first State to do so, in 1818 provided for allowance of bail in all cases except capital offenses. The language quoted above was used in doing so and we copied it later into our 1844 Constitution. Subsequently 40 States followed suit, using substantially the same command. In re Corbo, 54 N.J.Super. 575, 583, 149 A.2d 828 (App.Div.1959), certif. den. Corbo v. Donahue, 29 N.J. 465, 149 A.2d 859 (1959).

Although the rule was not incorporated into our Constitution until 1844, its existence by statute preexisted the 1776 Constitution. Chapter VIII of the 1682 Laws of the Province of East Jersey provided 'That all persons arrested shall be bailable by sufficient sureties, unless for capital offenses, where proof is evident or presumption great.' Leaming & Spicer, Grants and Concessions of New Jersey, 1664--1702, 235 (1881). The depth of the feeling of New Jersey citizens in this regard is shown by the proceedings of the Constitutional Convention of 1844. It was proposed there that the qualifying phrase 'where proof is evident or presumption great' be exscinded so as to bar bail for all capital offenses. The motion was defeated. Proceedings, New Jersey Constitutional Convention, 1844 at 157.

As of 1970 the Constitutions of 37 States by language similar to ours had established such a right to bail in non-capital cases. These Constitutions, including that of New Jersey, also contain the additional mandate that 'Excessive bail shall not be required.' Twelve State Constitutions and the Eighth Amendment of the United States Constitution incorporate only this latter prohibition. ² See, Preventive Detention, Hearings Before the Subcomm. on Constitutional Rights of the Sen. Comm. on the Judiciary, 91st Cong.2nd Sess. at 1193 (1970).

Historically, therefore, in New Jersey the right of the individual to bail before trial is a fundamental one. Certainly since 1844 at least, the courts have been under a mandate to allow bail in all criminalcases, including capital offenses, excepting only those instances 'when the proof is evident or the presumption great.' A capital offense has long been regarded as one for which the death penalty may be imposed. State v. Konigsberg, Supra; State v. Williams, 30 N.J. 105, 125, 152 A.2d 9 (1959); In re Corbo, Supra. So prior to Funicello a pretrial denial of bail meant that the accused was charged with a homicide for which the death penalty might be imposed, and that the proof of his guilt or the presumption thereof was great. Funicello having invalidated the death penalty for the type of homicide charged against Johnson, the question for decision now is whether the Constitution requires that he must be released on bail.

Obviously the duty of the judiciary is to obey the mandate of the Constitution. To deny bail in defiance thereof is to punish an accused before conviction, and to ignore the presumption of innocence which attends every citizen charged with crime--actions which are not tolerable under our system of justice. The attitude of the courts toward the present issue, must be deemed presaged by State v. Williams, Supra, 30 N.J. at 125, 152 A.2d 9. In that case Williams was indicted and tried for first degree murder. At trial the jury found him guilty of second degree murder. We held that such finding constituted an acquittal of first degree murder, and despite our reversal of the conviction and order for new trial (State v. Williams, 29 N.J. 27, 148 A.2d 22 (1959)), on principles of double jeopardy, he could not be retried for first degree murder. Williams having sought release on bail pending the retrial, this Court held that since his life was no longer subject to forfeit, the offense was bailable under the Constitution. Consequently the trial court was directed to fix bail on remand of the case to it.

State v. Wolf, 46 N.J. 301, 216 A.2d 586 (1966) is also significant in this connection. Wolf was convicted of murder in the first degree and the jury recommended life imprisonment. The conviction was reversed for trial errors (State v. Wolf, 44 N.J. 176, 207 A.2d 670 (1965)), and retrial was ordered. Prior to retrial on defendant's application the trial court ruled that the State was barred from again seeking the death penalty. On appeal by the State we affirmed, holding that the jury having rendered a judgment against infliction of the death penalty, the issue must be considered as adjudicated and binding for purposes of the forthcoming trial. The distinction drawn between a verdict of guilt of first degree murder which carried the death penalty and such a verdict which imposed life imprisonment obviously signified that murder which can produce only life imprisonment is not a capital offense, within the meaning of the Constitution.

In a number of States where the Constitution contained the same provision as ours respecting the nonbailability of capital offenses, the death penalty was subsequently abolished. Efforts were made in those States to perpetuate the ban on bail on the theory that the nature of the crime remained the same even though it no longer carried the possibility of death, and that exposure to a sentence of life imprisonment justified a holding that the crime was still a capital one. Such attempts were rejected.

For example, in State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958), the Constitution incorporated exactly the same provision for bail as does ours. Thereafter the Legislature abolished the death penalty. When Pett was indicted for murder the State objected to bail substantially for the reasons advanced in the case before us. It contended that since only murder in the first degree was punishable by death, the Constitution had reference to the offense rather than to the punishment and that murder in the first degree was still murder in the first degree, even though no longer punishable by death. In discussing the contention the court said that what the State was asking was that the Constitution be construed to read 'except for murder in the first degree' instead of 'except for capital offenses.' Such a construction it declared was 'untenable from a constitutional standpoint.' 92 N.W.2d at 206.

The court pointed out that from earliest times a capital offense meant one for which the death penalty may be imposed, and that the Constitution left it to the Legislature to define what was such an offense. It then continued:

When we abolished the death penalty for murder in the first degree, there no longer was any capital offense here. Our Constitution has never been amended to keep pace with the change, nor has our statute been so amended. Of course, an amendment of the statute without an amendment of the Constitution would be ineffective to deprive a defendant of rights which he is guaranteed under our bill of rights. Id.

The court noted the different treatment provided in Article 1, section 9 of the Rhode Island Constitution which gave the right to bail 'unless for offenses punishable by death Or by imprisonment for life, when the proof of guilt is evident or the presumption great.' (See Taglianetti v. Fontaine 105 R.I. 596, 253 A.2d 609 (1969)). It said also that the right to amend the Constitution rests with the people and that if bail is to be withheld in cases other than capital cases, the change must be brought about by such amendment. Citing a number of similar Constitutions of States which had repealed the death penalty, it noted that all of their courts had held that the right to bail was absolute. The conclusion...