¶1(concurring in part and dissenting). I agree with the portion of the opinion which finds no merit in any of the grounds raised on the application for post conviction relief from the finding by the jury that Trantino was guilty of first degree murder.
¶2However, with respect to the action of the majority in reaffirming the vacation of the death sentence imposed on Trantino as the result of the jury’s refusal to recommend life imprisonment, I repeat the dissent voiced in State v. Funicello, 60 N. J. 84 (1972).
¶3The majority of the Court vacated the death sentences in Funicello and in the other cases referred to in the per curiam opinion because they believed that the summary reversal by the United States Supreme Court of the death sentence in Funicello v. New Jersey, 403 U. S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859, motion for rehearing and clarification denied 404 U. S. 876, 92 S. Ct. 31, 30 L. Ed. 2d 125 (1971), meant that the death penalty provision in the Hew Jersey homicide act is unconstitutional. That summary reversal in Funicello simply cited United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) as the basis for its action. Ho effort was made to explain why the opinion of our Court in State v. Forcella, 52 N. J. 263 (1968), cert. dismissed 397 U. S. 959, 90 S. Ct. 999, 25 L. Ed. 2d 252 (1970), distinguishing the Federal Kidnaping Act involved in Jacksonfrom the Hew Jersey homicide statute was not sound. I believed when Forcella was written, and I still hold the view that our statute is valid constitutionally.
¶4Without reciting again the reasons for my earlier dissent, it seems sufficient to say in this case that Trantino was not subjected either to encouragement or coercion to plead non vult to the indictment against him. Hor did he go to trial because he was “ingenuous” enough to claim innocence and to seek an acquittal by demanding a jury trial. See United States v. Jackson, 390 U. S. at 573, 581, 583, 88 S. Ct. at 1211, 1216, 1217, 20 L. Ed. 2d 138, at 147, 148. He went to trial because the State considered the murders involved *184to be so horrendous that plea bargaining was not justified, and that the public interest in deterrence of such murders required a jury trial and a demand for the death penalty. So the trial was held and the jury being unable to find any mitigating circumstances declined to recommend life imprisonment.
¶5No one suggested that the jury action was unreasonable. As the opinions in this case indicate two young police officers were forced at gunpoint to undress, and when partially unclothed were “ruthlessly shot and tilled.” State v. Trantino, 44 N. J. 358, 362-363 (1965) ; Id.at page 179 of 60 N. J. And- as the majority opinion herein notes, “It is a fair characterization of the defense, which was presented by an able and experienced lawyer, to say that it was penalty oriented — to avoid the death penalty …
¶6The momentous significance of the United States Supreme Court’s one paragraph reversal of the death penalty in Funicello should not escape full awareness. It means that since 1917 at least, the date of the last material amendment of the homicide act, every convicted murderer who received a death sentence following a jury trial was put to death unconstitutionally. According to the records of the Department of Institutions and Agencies 113 men, perhaps the most notorious of whom was Bruno Richard Hauptmann, have been executed in Hew Jersey since 1917. That is hardly a comforting thought for present and former trial judges who were obliged to impose death sentences during that period because conscientious juries, regardless of their personal feelings about capital punishment, agreed with the prosecutors that service of the public safety and interest under existing law required the death penalty in each of those cases.
¶7For affirmance—Chief Justice Weiettbaub and Justices Jacobs, Peoctoe, Hall and Schettino—5.
¶8Concurring in pari and dissenting in part — Justice Feancis—1.