State v. Mangano

• Decision Date: 15 March 1909
• Citation: 77 N.J.L. 544,72 A. 366
• Parties: STATE v. MANGANO.
• Court: New Jersey Supreme Court

72 A. 366

77 N.J.L. 544

STATE

v. MANGANO.

Court of Errors and Appeals of New Jersey.

March 15, 1909.

Reed, Vredenburgh, Gray, and Dill, JJ., dissenting.

Error to Court of Oyer and Terminer, Union County.

Dominic Mangano was convicted of murder, and brings error. Reversed.

William R. Wilson, for plaintiff in error. C. Addison Swift, Prosecutor of the Pleas, for the State.

PARKER, J. The writ of error in this case brings up the record of the trial of plaintiff in error at the Union Oyer and Terminer, and his conviction of murder in the first degree. The assignments of error all bear upon the charge of the court below, or its refusal to charge as requested; and we find it necessary, on two of the grounds assigned, to reverse the judgment of conviction and remand the cause for a new trial.

The first ground is that the court in charging the jury upon the elements of murder in the first degree, after instructing them that it must be intentional, and done with deliberation and premeditation, used this language: "Now, gentlemen of the jury, premeditation does not require any length of time; a moment of time is sufficient. If you find from the evidence that this defendant had formed in his mind an intent to kill, and then instantly he deliberately perpetrated the act to carry out the intention, that is the deliberation and premeditation which the law requires in order to make it murder in the first degree." The noticeable feature of this instruction is of course the apparent, and as we think actual, incongruity of the two adverbs "instantly" and "deliberately." The question at once suggests itself whether an intent to kill, if formed without previous deliberation, as it might have been in view of this language, can be carried out instantly, and at the same time deliberately, or whether one condition does not necessarily exclude the other, and, if so, whether the charge was consequently prejudicial to the prisoner.

Our statute defining the degrees of murder, and prescribing that murder perpetrated by means of poison or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, shall be murder in the first degree (P. L. 1898, p. 824), is copied substantially from a Pennsylvania statute of 1794. Soon after its enactment in this state, in the August term, 1846, of the Hudson Oyer and Terminer, Chief Justice Hornblower, in the case of State v. Spence, charged the jury, as quoted in the opinion of the Supreme Court in Donnelly v. State, 26 N. J. Law, 509, 510, as follows: "That the premeditation or intent to kill need not be for a day, or an hour, or even a minute. For if the jury believe there was a design and determination to kill, distinctly formed in the mind at any moment before or at the time the pistol was fired or the blow struck, it was a willful, deliberate, and premeditated killing, and therefore murder in the first degree." The Supreme Court itself said in the Donnelly Case, speaking through Chief Justice Green (page 510 of 26 N. J. Law): "To constitute murder in the first degree under this clause of the statute there must be an intention to take life. No particular length of time need intervene between the formation of the purpose to kill and its execution. It is not necessary that the deliberation and premeditation should continue for an hour or a minute. It is enough that the design to kill be fully conceived and purposely executed." This pronouncement by the Chief Justice was approved by this court in the same case (26 N. J. Law, 601, 616), and in State v. Zdanowicz, 69 N. J. Law, 619, 55 Atl. 743, and may be regarded as the settled law of this state. But Chief Justice Green went on to say, in effect, what Chief Justice Hornblower had said in the Spencer Case that "whenever there is, in committing a homicide, a specific intention to take life, there is, in the language of the statute, a willful, deliberate, and premeditated killing, and the offense is murder in the first degree." 26 N. J. Law, 510. This latter proposition, as was pointed out in State v. Bonofiglio, 67 N. J. Law, 239, 243, 52 Atl. 712, 54, Atl. 99, 91 Am. St. Rep. 423, was not included in the approval by this court in Donnelly v. State, 26 N. J. Law, 619, and was expressly disapproved in the Bonofiglio Case, wherein the present Chief Justice called attention to the association in the statute of certain specific kinds of murder, to wit, murder by the administration of poison and by lying in wait, with any other kind of willful, deliberate, and premeditated killing, as indicating the meaning which the Legislature intended should be given to the words "deliberate" and "premeditated." The same point was again noted in State v. Deliso, 69 Atl. 218, 222, by Justice Garrison, writing the opinion of this court, who further remarked that: "While the statute in its enumeration of the three mental states essential to murder in the first degree places the word 'willful' before 'deliberate' and 'premeditated,' these mental states normally succeed each other in the inverse order; premeditation, both as a mental process and by force of its prefix, necessarily preceding the weighing of the mental content that is implied by the figurative term 'deliberate,' both of which must precede the acceptance by the will of the matter thus previously premeditated upon and weighed."

It is therefore settled in this state that murder in the first degree cannot be predicated on the mere existence of an intent to kill at the time of committing the crime. Some decisions elsewhere go so far as to say that if the design has been deliberately formed, the crime will be murder in the first degree, although that design is instantly carried into effect. 21 Cyc. 727, and cases cited. But this in no wise impugns the...