State v. Greely

*495 Yanderbílt, C. J.

(dissenting). The defendants were indicted for murder in the first degree committed in the commission of a robbery. The jury by its verdict found the defendants “guilty as charged, with a recommendation of life imprisonment.”

• The verdict here differs from those in the cases of State v. Turco, 98 N. J. L. 61 (Sup. Ct. 1922); State v. Cooper, 2 N. J. 540 (1949) and State v. Cleveland, 6 N. J. 316 (1951). The verdict here is unambiguous. It is unmistakably a verdict of murder in the first degree because by statute and under the charge of the court a recommendation of life imprisonment is restricted to cases of murder in the first degree, N. J. S. 2A :113-4. The recommendation of life imprisonment inexorably stamps the verdict of “guilty as charged” as guilty of murder in the first degree.

This was not so in the Turco, Cooper and Cleveland cases. On the trial of each of these cases on an indictment for murder in the first degree the verdict was “guilty,” but without any recommendation o£ life imprisonment. Each of these verdicts was accordingly ambiguous as to whether the jury had in mind murder in the first or in the second degree, and each was -accordingly set aside.

But here the verdict, as I have said, is unambiguous and unmistakable. To set it aside is to make a shibboleth out of the statute, N. J. S. 2A :113-2.

I would affirm the convictions.

For reversal—Justices Heher, Oliphant, Wacheneeld, Burling, Jacobs and Brennan—6. For affirmance—Chief Justice Yanderbílt—1.