State v. Burrell , 120 N.J.L. 277 ( 1938 )

I concur in the view that, in respect of its extra common law classifications, section 131 of the Crimes act does not define "burglary" within the intendment of section 107, as amended byPamph. L. 1917, p. 801. Comp. Stat. 1910, pp. 1780, 1787;Rev. Stat. 2:138-2, 3; 2:115-1. There being no clear expression to the contrary, it is to be presumed that the legislature, in the adoption of section 107, had in mind burglary as defined at common law. Unlike the captions of the individual sections of the Revised Statutes of 1937, the heading of section 131 of the Crimes act, supra, was not comprised in the section as enacted by the legislature, and therefore is not to be considered as of its substance for the purpose of determining the legislative intent. It was therefore error for the trial judge to charge as he did respecting the elements of burglary. But, for the reasons stated by Mr. Justice Parker, the error did not prejudice the substantial rights of plaintiffs in error.

And, in my view, there was error also in the instruction that, as respects the defense of intoxication, acquittal was the alternative to a conviction of murder in the first degree.Wilson v. State, 60 N.J.L. 171; State v. Mack, 86 Id.233; State v. Mangano, 77 Id. 544. See, also, concurring opinion in State v. Roach, 119 Id. 490. Yet this error worked no harm in matter of substance, for the reason that, while the trial judge conceived there was a factual issue as regards the defense of intoxication and submitted the question to the jury, there was an utter lack of evidence that either plaintiff in error was so intoxicated as to lack the mental power to form the requisite particular intent to commit the underlying crime. Each prisoner, on his examination — direct and cross — acknowledged that he entered the deceased's premises with the prescribed felonious intent, previously formed, and that he was fully aware at all times of his acts while upon the premises. And their actions, as they severally related them on the witness stand, demonstrate this beyond peradventure. There is no evidence to the contrary.

In Wilson v. State, supra, this court, in a deliverance by Mr. Justice Van Syckel, laid down the rule that the evidence, to create a jury question on the issue of intoxication, must provide a substantial basis for the factual conclusion that the faculties of the accused were so far prostrated as to render him incapable of forming the essential intent. In the words of Judge Andrews, in his dissenting opinion in People v. Koerber, 244 N.Y. 147; 155 N.E. Rep. 79, 83, there is no question for the jury, where that defense is interposed, unless there be evidence tending to show that, at the time of the alleged burglary, there was, so far as the accused is concerned, "a complete absence of conscious volition — an ignorance of his acts and purposes." Assaying the evidence here in the light of this principle, the plaintiffs in error were indisputably not harmed by the instruction thus complained of.

With this qualification, I vote to affirm, for the reasons expressed in the opinion of Mr. Justice Parker.

For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 14.

For reversal — None.