¶1 (dissenting).
¶2 I vote to reverse the death sentence in this case because 1 think the learned trial judge, in effect, charged the jury with reference to the question of recommending life imprisonment, that if they wanted the defendant to be adequately punished they should render a death verdict and not a life imprisonment verdict, as the latter could be “disregarded and set at naught by the court of pardons.” Of course, -as a matter of law, a death ver *115 diet may be “set at naught” by the court of pardons, just the same as may a life imprisonment verdict, but the jury were not only so informed, but they were, as I think, impliedly instructed exactly the opposite.
¶3 That such a method of inducing juries to render capital verdicts is reprehensible, is, of course, obvious. A mere statement of the proposition pronounces its own condemnation. Even with reference to crimes and punishment of a lesser degree, it would be regarded as monstrous if a trial judge, in sentencing a convicted criminal, should avowedly impose a double penalty on the theory that if he did not do so the court of pardons might, ultimately, reduce the penalty to less than he thought it ought to he. How much more hideous it is when death is the greater penalty imposed to insure against an undue reduction of a lesser penalty. If a judge impose a double imprisonment penalty to insure a lesser one he had opportunity to rectify his error, not only during the six months’ recall for resentence period, but afterwards by recommendation to the court of pardons; but when a trial judge has, in effect, seduced a jury into omitting the life imprisonment recommendation by erroneous telling them (at least impliedly) that in that way only may they insure against nullification of their verdict by the court of pardons, how can the wrong be remedied? No one knows what the jury would have done if the poison had not been administered. All that the record shows is a death verdict. Possibly, nay, probably, the jury would have; rendered that verdict in any event. But who knows? Certainly not the court of pardons. Ls that court going to step in and set aside the death penalty verdict when the evidence amply justifies such verdict, simply because the trial judge’s erroneous language may have influenced the jury against a life imprisonment recommendation? Of course not. That function falls
¶4 within the proper province of the Court of Errors and Appeals. And after the death penalty has been executed and a human life has been destroyed, what chance for rectification then? Certainly, none on earth.
¶5 But it is said that while language of trial judges tending to procure death penalty verdicts by the suggestion to the *116 jury of the possibility of action by the court of pardons, has been consistently condemned by this court, such language has, nevertheless, been held not to be cause for reversal. This is only partially true. What this court has said is that where the jury were told that the court of pardons might intervene as to any verdict they might render, whether of death or of life imprisonment, there was no cause for reversal. Certainty, this court has never said where the jury were, in effect, told that they had better bring in- a death penalty verdict if they wanted to provide against intervention by the court of pardons, that such instruction could be upheld.
¶6 In the present case the learned trial judge told the jury, “Naturally, one of the elements to be considered by you is whether, if you should by your verdict impose life imprisonment, it can be disregarded and set at naught by the court of pardons.” The jury were not told that a death penalty verdict might likewise be so “set at naught.” While this language is a quotation from the opinion of this court in State v. Rombolo, 89 N. J. L. 565, where the jury calne in and asked the court as to the power of the court of pardons in case of a life imprisonment recommendation, it was used in that opinion rather in the wajr of comment and not as the essence of what was there held, which was that a statement of the entire power of the court of pardons was harmless. That opinion, after commenting on the fact that “naturally one of the elements to be considered by the jury,” &c. (as above quoted), expressly said: “We see no reason why they [the jury] should not be informed of the power [obviously meaning the full power] of the court of pardons if they so desired, and, as a necessary consequence, we see no impropriety in the trial court either at the request of the jury or without such request, apprising that body with relation to the power of supervision possessed by the pardoning 'tribunal.”
¶7 This language, while, perhaps, unfortunate in what has turned out to be its suggestive effect, was technically correct under the legislation (the act of 1916) as it stood at that time. Under that legislation the jury were not con *117 fined to the effect of the evidence in the case, but might consider anything they chose in deciding whether or not to recommend life imprisonment. State v. Carrigan, 93 N. J. L. 268, in the Supreme Court, seems to have been decided also upon the effect of the act of 1916.
¶8 The act of 1919 was then passed and the life imprisonment recommendation was thereby made a part of the jury’s verdict, and in deciding whether the recommendation should or should not be made, the jury were by that act confined to a consideration of the evidence in the case. This being the case, I am somewhat at a loss to understand how, under the act of 1919, the power of the court of pardons is a matter in any way relevant to the matter thus to be decided by the jury from the evidence. My own impression is that an inquiring jury might very properly be told that the functions of the court of pardons wras a subject with which they had no proper concern in the rendition of their verdict, and that most emphatically in the absence of an inquiry from the jury the court should not volunteer any suggestion upon the subject no matter how fairly made.
¶9 But where, upon inquiry from the jury or without it, the court does charge the jury upon the powers of the court of pardons, the question of error requiring reversal is another matter, and depends upon whether or not the instructions was injurious to the accused. Where the instruction has been full and complete, and not as here one-sided and misleading, this court has refused to reverse.
¶10 In the second Martin case (State v. Martin, 94 N. J. L. 139) the jury were told that “the court of pardons is a higher court than the Oyer and Terminer, and may exercise the pardoning power of sovereignty as a court of pure mercy and grace, and if a defendant in a case of this character is sent to state prison for life, that court may change the result, of the verdict.” Obviously, the last part of this sentence was going very close to the objectionable line, and regarding it this court said: “We think the remark was unfortunate,” but as the fact remained that the jury were, in effect, also told that the sovereign pardoning power of the court of pardons was above the sentences of the Court of Oyer and *118 Terminer, whatever those sentences were, this court said that the remarks, while unnecessary, were, doubtless, not harmful,, as every juryman must know of the existence of the court of pardons.
¶11 In State v. Schilling, 95 N. J. L. 145, the court charged that the court of pardons might modify, change, reduce, abolish or set aside whatever result the jury might arrive at, whether they fixed the penalty as death or life imprisonment, and this court said: “The power of the court of pardons is a constitutional one of common knowledge, and its statement to the jury was a sound legal proposition not harmful to the defendant, nor error in law, when, as in this case, it was applied to any verdict the - jury might return.”
¶12 This Schilling case, which is the last word of this court upon the subject, seems to me tó indicate the true doctrine, which is, that while it is quite unnecessary for trial judges to volunteer instructions of this character, tending as they do to bring discredit upon and public lack of confidence in the somewhat difficult work performed by the court of pardons (which work, by the way, is performed under conditions resulting from our penal legislation, whereby innocent women and children in a large majority of cases are the ones who suffer the, punishment for crimes, while the actual culprits .are supported by the state in degenerating idleness, instead of being required to work at real wages, supplied by the proceeds of their toil, for the support of their families), nevertheless, if trial judges see fit to take this action, it must be done in fairness to the defendant, whose life is at-stake, and not, as here, in a misleading and one-sided manner, the effect of which is to improperly influence the jury. I think the matter sufficiently important, and the error so manifestly harmful as to require a new trial of the present ease. ■
¶13 I am also of opinion that the evidence of first degree instead of second degree murder was so meagre and unreliable as not to justify the affirmance by this court of a verdict imposing the death penalty.
¶14 For the above reasons I vote to reverse.
¶15*119 For affirmance — The Chancellor, Chief Justice, Trenchard, Parker, Katzknbach, Lloyd, Gardner, Van Bitskirk, JJ. 8.
¶16 For reversal — Kalisch, Black, Campbell, White, Mc-Glbxnon, Kays, JJ. 6.