State v. Laws , 51 N.J. 494 ( 1968 )

The opinion of the court was delivered by

Jacobs, J.

The defendants were convicted of murder in the first degree and were sentenced to death. They appealed to this Court and after full consideration we found that their guilt was firmly established in a fair trial free from prejudicial error, apart from a single error which bore not. on guilt but on the death sentences alone. 50 N. J. 159, 187 (1967). At oral argument, the State, which undoubtedly could have waived the death penalty before or at trial (In re Waiver of Death Penalty, 45 N. J. 501 (1965)), took the position that, rather than a reversal and full retrial because of the sentencing error, the murder convictions should be modified so that the defendants would stand convicted of murder in the first degree with life imprisonment. However, the defendants asserted that this Court lacked the power to modify and that consequently there must be a complete retrial. 50 N. J., at p. 188. We ordered reargument on this issue and invited the Attorney General to file a brief and argue amicus curiae. 50 N. J., at p. 189.

In their supplemental brief and at the reargument the defendants reasserted that this Court lacked modification power and that they were entitled to a retrial on both guilt and punishment. The State, through the County Prosecutor, filed a supplemental brief recommending that the findings of guilt be permitted to stand and the matter be remanded for a trial limited to "the sole issue of penalty imposition, before the jury that sat at the original trial or a newly impanelled jury.” If such course is held unavailable, the State’s position, as expressed by the prosecutor at the reargument, is that the judgments of conviction should not be reversed for full retrial but should be modified so that the defendants would stand convicted of murder in the first degree with life imprisonment; indeed the prosecutor indicated that since Dennis Kingsley (50 N. J., at p. 167) and perhaps other important witnesses for the State had disappeared he might not, in the event of reversal, be able to bring the matter on for such retrial at all.¹ The Attorney General filed a brief amicus curiae which asserted unequivocally that “this Court has the power to review the sentences of death herein and to impose sentences of life imprisonment”; at the reargument this position was reaffirmed with the recommendation that there be a modification rather than a reversal in the case at hand.

Passing for the moment any special considerations applicable to capital cases, it would appear entirely clear that our appellate courts have power to review and modify sentences in appropriate circumstances. There was a time in history, as evidenced by State v. Gray, 37 N. J. L. 368 (Sup. Ct. 1875), when judges thought otherwise with consequences now recognized as patently offensive to reason and good sense. In Gray a defendant was lawfully convicted of adultery but was improperly sentenced to the state prison rather than to the county jail; on appeal, the sentence was held to be improper but the court, instead of modifying it, set the defendant free. To insure against miscarriages of this sort, the Legislature provided that, whenever a conviction is reversed for error in the sentence, the appellate court may enter the judgment which should have been rendered or may remand the matter to the lower court for that purpose. See L. 1898, c. 237, § 144, p. 916; R. S. 2:195-23; R. S. 2:195A-13; State v. Burns, 136 N. J. L. 601, 603 (E. & A. 1948); State v. Garton, 102 N. J. L. 318, 321 (E. & A. 1926); State v. Huggins, 84 N. J. L. 254, 261 (E. & A. 1913). In State v. Culver, 23 N. J. 495, certiorari denied, 354 U. S. 925, 77 S. Ct. 1387, 1 L. Ed. 2d 1441 (1957), this Court flatly rejected the technisms of Gray and gave clear expression to the broad appellate power to modify sentences, a power which was found to be an inherent judicial one (23 N. J., at pp. 501, 511) as well as one supported formerly in the practice acts and now in the practice rules. 23 N. J., at pp. 500-504; R. R. 1:5—1 (c); R. R. 1:9—1; R. R. 1:5-4.

In Quiver the defendant was lawfully convicted of armed robbery but was erroneously sentenced to life' imprisonment. He contended that Gray embodied the common law and that under it he should be set free, stressing that the legislation (R. S. 2:1954.-13) which had been enacted to obviate Gray had been repealed on the adoption of Title 2A of the Revised Statutes. But as Chief Justice Vanderbilt properly pointed out, the repealer was simply legislative recognition that the identical subject had been effectively dealt with in the court rules adopted under the Supreme Court’s constitutional authority to govern practice and procedure. N. J. Const., Art VI, § 2, par. 3. 23 N. J., at p. 502. And as to the contention that Gray voiced common law principles, the Chief Justice aptly noted that the common law is a living force with ample capacity for development and adaptation to current needs and beliefs. 23 N. J., at p. 505; see Collopy v. Newark Eye and Ear Infirmary, 27 N. J. 29, 43-48 (1958). In the light of such needs and beliefs, he found little difficulty in rejecting Gray along with its archaic English foundations and in announcing that, as a matter of present common law, our appellate courts have the inherent power “to correct an illegal or improper sentence.” 23 N. J., at p. 505.

In State v. Johnson, 67 N. J. Super. 414 (App. Div. 1961) the defendants were convicted of rape and kidnapping and received sentences to be served consecutively. On appeal, they contended that their sentences were manifestly excessive and should be modified. In a comprehensive opinion by Judge Gaulkin, the Appellate Division upheld the appellate power “to revise a sentence where it is manifestly excessive, even though within authorized statutory limits.” 67 N. J. Super., at p. 432. It cited the pertinent language in Culver, the out-of-state decisions which have held that “the right to affirm, reverse, or modify judgments includes the right to revise sentences” (67 N. J. Super., at p. 431) and the persuasive legal literature which sets forth the many compelling arguments in favor of appellate review of sentences. See Hall, Reduction of Criminal Sentences on Appeal, 37 Colum. L. Rev. 521 (1937); Mueller, Penology on Appeal: Appellate Review of Legal But Excessive Sentences, 15 Vand. L. Rev. 671 (1962); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, pp. 13-20 (Tent. Draft, April 1967); cf. 20 Stan. L. Rev. 405 (1968); 14 How. L. J. 29 (1968); 18 Maine L. Rev. 133 (1966); 74 Yale L. J. 379 (1964); 16 Rutgers L. Rev. 186 (1961); 46 Iowa L. Rev. 159 (1960); 36 U. Det. L. J. 356 (1959). See also State v. Mull, 30 N. J. 231, 239 (1959).

The authority of Johnson has been repeatedly acknowledged in later Appellate Division cases, though in most of them (but not all) the lower court was found not to have exceeded its discretionary sentencing power. See State v. Wasserman, 75 N. J. Super. 480, 485 (App. Div. 1962), affirmed 39 N. J. 516 (1963); State v. Gibbs, 79 N. J. Super. 315, 324-326 (App. Div. 1963); State v. Furino, 85 N. J. Super. 345, 349 (App. Div. 1964); State v. Hall, 87 N. J. Super. 480, 484-485 (App. Div. 1965); State v. Ford, 92 N. J. Super. 356, 361 (App. Div. 1966); State v. Driesse, 95 N. J. Super. 491, 494 (App. Div. 1967). And although the power to modify illegal and improper sentences was explicitly recognized in Culver, this Court has thus far not had any occasion to modify a sentence as manifestly excessive, as was done in Johnson. However, in State v. Tyson, 43 N. J. 411, 417 (1964), certiorari denied, 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965) we recently gave unmistakable indication that upon a showing of “abuse of discretion” by the trial court we would not hesitate to reduce a sentence though it was within the outer bounds fixed by statute; indeed we could hardly take any lesser course without being faithless to our reviewing responsibilities and the true interests of right and justice.²

In considering the scope of this Court’s reviewing authority, we must bear clearly in mind the fact that its current source of power is the 1947 Constitution. See Hager v. Weber, 7 N. J. 201, 205 (1951). That organic document purposefully modernized and greatly strengthened our judicial system. In the process it vested this Court with wide judicial power, perhaps more sweeping than that granted to any other court of last resort, and all to the end that it would be in a fair position to insure that justice is truly and equally done. It replaced the earlier and narrower “writ of error” with a comprehensive “appeal,” (Art. VI, § 5, par. 1), and directed that this Court “exercise appellate jurisdiction in the last resort in all causes” provided in the Constitution. Art. VI, § 2, par. 2. It granted original jurisdiction to the extent necessary to enable “complete determination of any cause on review.” Art. VI, § 5, par. 3. It delegated broad power to make rules governing “the practice and procedure” of all courts within the State. Art. VI, § 2, par. 3. And it provided that, in lieu of the prerogative writs under which inferior tribunals had been supervised (Mellor v. Kaighn, 89 N. J. L. 543, 545 (E. & A. 1916)), review shall be had “in the manner provided by rules of the Supreme Court, as of right, except in criminal causes where such review shall be discretionary.” Art. VI, § 5, par. 4. See Jaffe, Judicial Control of Administrative Action 170, 378, 467 (1965).

Eollowing the adoption of the Constitution, comprehensive court rules were promulgated which faithfully sought to carry out the high purposes of the constitutional draftsmen. One of these rules stated that the Supreme Court could set aside a jury verdict as against the weight of the evidence. See Rule 1:2-20—now R. R. 1:5-3. Flanigan v. Guggenheim Smelting Co., 63 N. J. L. 647 (E. & A. 1899) had held that the old court of last resort had no such power and in Hager v. Weber, supra, 7 N. J. 201, an attack was made on the new rule. This was quickly rejected in an opinion by Justice Heher which explicitly noted that appellate review is concerned with the remedy and is “a remedial procedure secured against legislative interference” by the various provisions of the 1947 Constitution. 7 N. J., at pp. 205-06. Stressing the broadened and strengthened nature of the Supreme Court’s reviewing power, he said:

Now, by the Constitution of 1947, the common-law writ of error has been superseded by the appeal therein provided. Article VI, Section V, paragraphs 1, 2. Under paragraph 3 of the same section, the Supreme Court and the Appellate Division of the Superior Court may exercise “such original jurisdiction as may be necessary to the complete determination of any cause on review.” This grant of original jurisdiction is significant of a design to provide a review of matters of fact as well as of law, in accordance with the historic function of an “appeal.” For the history and the varied uses of the “appeal” in American and English jurisprudence, see Vaill v. McPhail, 34 R. I. 361, 83 A. 1075 (1912). There is no ground whatever for supposing that the framers of the Constitution had in mind an “appeal” in law cases that would merely perform the office of the old writ of error in mode and scope of review. 7 N. J., at p. 211.

Recognizing, as we do, an appellate power to review and modify sentences in the ordinary run of cases, we come now to the capital cases. Unlike more limited constitutional provisions in other states (see, e. g., the California Constitution which provides in Article 6, Section 4, that its Supreme Court shall have appellate jurisdiction “on questions of law alone, in all criminal cases where judgment of death has been rendered”), our Constitution provides unrestrictedly that an appeal may be taken as of right to the Supreme Court “in capital causes.” Art. VI, § 5, par. 1. There has of course been considerable legislation dealing with capital causes and its history has been carefully set forth on many occasions. See State v. Martin, 92 N. J. L. 436 (E. & A. 1919); State v. Molnar, 133 N. J. L. 327 (E. & A. 1945); State v. Johnson, 34 N. J. 212, appeal dismissed, 368 U. S. 145, 82 S. Ct. 247, 7 L. Ed. 2d 188, certiorari denied, 368 U. S. 933, 82 S. Ct. 370, 7 L. Ed. 2d 195 (1961); State v. Sullivan, 43 N. J. 209 (1964), certiorari denied, 382 U. S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966). Nowhere in this history is there any suggestion of either legislative authority or purpose to curb appellate powers; indeed all of it may be searched in vain for any indication whatever that, in fixing and altering the penalty for murder, the legislators ever gave any thought to or ever entertained any restrictive views with respect to the court’s authority on appeal. See L. 1898, c. 235, § 108, p. 825; L. 1916, c. 270, § 1, p. 576; L. 1919, c. 134, § 1, p. 303; R. S. 2:138-4; N. J. S. 2A:113-4.

The 1898 statute directed, as did earlier legislation, that every person convicted of murder in the first degree shall be put to death (L. 1898, c. 235, § 108, p. 825); the 1916 statute directed that the punishment be death unless the jury recommends life imprisonment (L. 1916, c. 270, § 1, p. 576); and the 1919 statute directed, as does our current law, that the punishment be death unless the jury shall by its verdict, “and as a part thereof,” upon and after consideration of all the evidence, recommend life imprisonment “in which case this and no greater punishment shall be imposed.” L. 1919, c. 134, § 1, p. 303; R. S. 2:138-4; N. J. S. 2A .T13-4. None of the cited statutes was addressed in any manner to appellate proceedings after conviction which, as our practice rules explicitly provide, culminate in a mandate that the judgment appealed from be “affirmed, reversed or modified.” R. R. 1:9—1. Under the 1898 statute, there was no choice but to impose the death penalty; under the 1916 statute the jury had the choice between life imprisonment and the graver penalty of death;³ and under the 1919 statute, as now, its choice of life imprisonment was to be part of its verdict after consideration by it of all the evidence in the case. See State v. Molnar, supra, 133 N. J. L. at pp. 333-334; State v. Mount, 30 N. J. 195, 215-220 (1959).

Prom the legislation thus outlined it is indisputable that there is no mandatory penalty of death for first degree murder. The penalty is either death or the lesser punishment of life imprisonment. In deciding what penalty to impose in a given case, the jury exercises a discretion which is comparable to that exercised by the trial judge when choosing between higher and lesser punishment in other cases. In State v. Johnson, supra, 34 N. J. 212, Justice Proctor recently put the matter in appropriate terms as follows:

A jury deciding whether to recommend life imprisonment under N. J. S. 2A :113-4 is guided by the same implied standard as a trial judge assessing punishment under any other criminal statute, i. e., the determination of that sentence within statutory limits which best serves the interests of justice as between society and the defendant. See State v. Mount, 30 N. J. 195, 216 (1959). Cf. In re Steenback, 34 N. J. 89 (1961). Admittedly, that is a general standard, but the only one which is meaningful in this context. Additionally, we note that the jury’s discretion under N. J. S. 2A :113—4 N. J. S. A. is not absolute. It is limited by the statutory mandate that a recommendation of life imprisonment must be based “upon and after consideration of all the evidence.” State v. White, 27 N. J. 158, 167 (1958). A determination of what circumstances make the imposition of capital punishment unjust or unwise is left to the collective discretion and judgment of the jury, as, in other contexts, it is ordinarily left to the judge. That determination must be made upon the facts of a particular case. Indeed, legislative specification of criteria for recommendation of life imprisonment might prejudice a defendant through the exclusion by omission of a factor relevant in a given case. We hold that N. J. S. 2A :113—4 N. J. S. A. which gives to the jury the discretion to recommend life imprisonment where it returns a verdict of first degree murder is constitutional. 34 N. J., at p. 230.

There is no precedential decision in our State.which discusses or deals with this Court’s power to modify a first degree murder conviction by reducing a sentence of death to life imprisonment. The issue was not raised in State v. White, 27 N. J. 158 (1958) nor was it involved in other cases such as State v. Sullivan, supra, 43 N. J. 209 and State v. Mount, supra, 30 N. J. 195. Language in the cited cases as to the nature of the jury’s discretion in making its choice between the death penalty and life imprisonment must of course be read in context, and as thus read is clearly compatible with the unanimous opinion of this Court in State v. Johnson, supra, 34 N. J., at p. 230. There are, however, precedential out-of-state decisions and it is highly significant that in many of them sentences of death were reduced to life imprisonment under local procedures akin to our own though lacking the support of our expansive constitutional history and authority. See State v. Ramirez, 34 Idaho 623, 203 P. 279, 29 A. L. R. 297 (1921); Davis v. State, 155 Ark. 245, 244 S. W. 750 (1922); Williams v. State, 183 Ark. 870, 39 S. W. 2d 295 (1931); Frady v. United States, 121 U. S. App. D. C. 78, 348 F. 2d 84 (D. C. Cir.), certiorari denied, 382 U. S. 909, 86 S. Ct. 247, 15 L. Ed. 2d 160 (1965); Coleman v. United States, 123 U. S. App. D. C. 103, 357 F. 2d 563 (1965); Spillers v. State,-Nev.-, 436 P. 2d 18 (1968); cf. Hubka v. State, 40 Okl. Cr. 161, 267 P. 864 (1928); Fritz v. State, 8 Okl. Cr. 342, 128 P. 170 (1912); Commonwealth v. Garramone, 307 Pa. 507, 161 A. 733, 89 A. L. R. 291 (1932). See also Austin v. United States, 382 F. 2d 129 (D. C. Cir. 1967).

In Frady v. United States, supra, the defendants were convicted of murder in the first degree and were sentenced to death. Under the controlling District of Columbia Code, as under the Hew Jersey statute, the jury could have recommended life imprisonment, in which event that would have been the penalty. On appeal, the court found no error as to guilt but found error which bore on the death sentences. In response to the court’s inquiry, the Government took the position that under 28 U. S. G. § 2106, which affords appellate power to affirm, reverse or modify, the Court of Appeals could “modify the judgment by providing for a life sentence or by remanding the case to the District Court with directions to do so.” 348 F. 2d, at p. 91; Coleman v. United States, supra, 357 F. 2d, at p. 572. The court so modified and imposed sentences of life imprisonment. In the course of the principal opinion, Judge Eahy noted that it was “impossible, and impermissible, to reconvene the same jury to consider now the punishment”; that a new jury was “not required to be convened for that purpose, assuming a jury other than the trial jury could validly perform the sentencing” under the Code; and that since the death sentences could not stand, “the appropriate solution” under all of the circumstances was to direct the entry of sentences of life imprisonment. 348 F. 2d, at pp. 90-91.

In Austin v. United States, supra, the defendant was convicted of first degree murder. The prosecutor had not requested the death penalty and on the jury’s recommendation of life imprisonment the defendant was so sentenced. On appeal, the Court of Appeals found that, although the evidence did not establish murder in the first degree, it did establish murder in the second degree. It did not order a new trial but directed that the defendant be resentenced by the trial judge unless he found that a retrial was in the interests of justice. In the course of his opinion, Judge Leventhal cited numerous cases in which appellate courts, acting under their inherent power or under practice acts recognizing their power to affirm, reverse or modify, have reduced the degree of the offense and have either modified the sentence or remanded for lower court modification. 382 F. 2d, at 140-141; see People v. Monaco, 14 N. Y. 2d 43, 248 N. Y. S. 2d 41, 197 N. E. 2d 532 (1964); Ritchie v. State, 243 Ind. 614, 189 N. E. 2d 575 (1963); State v. Braley, 224 Or. 1, 355 P. 2d 467 (1960); Forsha v. State, 183 Tenn. 604, 194 S. W. 2d 463 (1946); State v. Porello, 138 Ohio St. 239, 34 N. E. 2d 198 (1941); State v. Jackson, 198 Minn. 111, 268 N. W. 924 (1936).

The foregoing approach is fair and sensible and clearly furthers the sound administration of justice. Retrial is burdensome to the judicial system and costly to the parties and, as here, may involve serious danger of miscarriage. Where the interests of justice may truly be satisfied by a less wasteful alternative which does not prejudice the defendant, it should of course be followed as in Frady and Austin. Though self-limiting decisions by state courts may readily be cited,⁴ it is worthy of note that they were not rendered under modern constitutions like New Jersey’s 1947 Constitution; in any event reference may with equal readiness be made to other state court decisions which have gone much further in modifying sentences on appeal than we are called upon to do here. See, e. g., State v. Ramirez, supra, 34 Idaho 623, 203 P. 279, 29 A. L. R. 297; Davis v. State, supra, 155 Ark. 245, 244 S. W. 750; Hubka v. State, supra, 40 Okl. Cr. 161, 267 P. 864; cf. State v. Hall, 176 Neb. 295, 125 N. W. 2d 918, 926 (1964).

In Spillers v. State, supra,-Nev.-, 436 P. 2d 18, the defendant was convicted of rape with violence and his penalty was set by the jury at death. On appeal, the Supreme Court of Nevada sustained the defendant’s contention that the Nevada statute was unconstitutional insofar as it authorized a death penalty where the defendant was tried by a jury but not where he pleaded guilty or was tried before a judge alone on a waiver of jury with the state’s consent.⁵ However, the court did not set aside the conviction or order a new trial but modified the judgment of conviction by reducing the death penalty to a sentence of 20 years to life, saying:

NRS 177.240 invests this court with authority to “reverse, affirm, or modify the judgment appealed from.” The sentence imposed is a part of the judgment. Allgood v. State, 78 Nev. 326, 372 P. 2d 466 (1962); Ex parte Salge, 1 Nev. 449 (1865). Thus, we may modify an unauthorized sentence and substitute therefor any proper sentence that was open to the sentencing court. State v. Moore, 48 Nev. 405, 233 P. 523 (1925); State v. Johnson, 75 Nev. 481, 346 P. 2d 291 (1959); see also State v. Squier et al., 56 Nev. 386, 54 P. 2d 227 (1936). 436 P. 2d at p. 23.

In Commonwealth v. Aljoe, 420 Pa. 198, 216 A. 2d 50 (1966) the court, distinguishing Commonwealth v. Smith, 405 Pa. 456, 176 A. 2d 619 (1962), reduced a jury’s death penalty because the prosecutor in his summation at the trial had improperly injected considerations of parole. 216 A. 2d, at p. 56. In the earlier case of Commonwealth v. Garramone, supra, 307 Pa. 507, 161 A. 733, the trial judge had fixed the penalty at death pursuant to a statute which authorized him to impose either death or life imprisonment. On appeal, the Pennsylvania Supreme Court examined the record and concluded that the circumstances did not justify the judge’s exercise of his discretion in favor of the more severe penalty. In the course of his opinion, Justice Linn stated that there was “no doubt” as to the court’s power to reduce the penalty “from'death to life imprisonment” which it proceeded to do. 161 A., at p. 735. See also Commonwealth v. Green, 396 Pa. 137, 151 A. 2d. 241 (1959). In other states similar action has been taken where the death sentence was fixed by the jury rather than the judge. See State v. Ramirez, supra, 34 Idaho 623, 203 P. 279; Davis v. State, supra, 155 Ark. 245, 244 S. W. 750; Hubka v. State, supra, 40 Okl. Cr. 161, 267 P. 864.

In Ramirez, the defendant was found guilty of murder in the first degree. The jury set the punishment at death under a statute which provided that every person guilty of murder in the first degree shall suffer death or be punished by imprisonment for life as the jury decides. On appeal, the court found that while the evidence established guilt it was “not sufficient to warrant the extreme penalty of the law”; accordingly, it modified the judgment by reducing the sentence to life imprisonment. In response to the contention that the appellate court’s power to “reverse, affirm or modify” did not extend to a case where the jury rather than the court had fixed the punishment, it made the following comments which are persuasive here:

We perceive no logical reason why the judgment of the jury should be more potent than that of the court, and why this court may review the latter hut not the former, in so far as it relates to the penalty to be inflicted. Nor why the evidence may be reviewed to determine its sufiiciency to support the verdict, but not to determine whether it justifies the infliction of the death penalty. Nor why, in a case where there was error in the record, but not of such a character as to warrant a reversal, in order to avoid the imposition of the extreme penalty when not warranted by the evidence, this court should he put to the alternative of reversing the judgment nevertheless or of permitting injustice to be done. Considerations of both reason and justice uphold the proposition that this court may modify a judgment where the jury has found the defendant guilty of murder in the first degree and fixed the punishment at death, when the furtherance of justice requires such modification. 203 P. at pp. 282-283.

See State v. Goodyear, 98 Ariz. 304, 404 P. 2d 397, 410 (1965), reversed on other grounds, 100 Ariz. 244, 413 P. 2d 566 (1966); State v. Valenzuela, 98 Ariz. 189, 403 P. 2d 286 (1965); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, supra, at p. 17.

In Fritz v. State, supra, 8 Okl. Cr. 342, 128 P. 170, the jury found the defendant guilty of murder. The statutory penalty was either death or life imprisonment and the jury fixed it at death. On appeal, the court modified the conviction by affirming the finding of guilt and reducing the penalty to life imprisonment. In response to the contention that its action intruded on the Governor’s commutation power, the court had this to say:

The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor when deemed proper in the furtherance of justice is in no sense the power of commutation of the sentence of the lower court. Commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parol, or commute are wholly distinct in their nature. The one is an award of justice and the other is an act of grace. Commutation is a matter of discretion and may be refused. Justice is imperative, and must not be denied. The fact that the Governor has the power to commute does not abridge the defendant’s right to appeal to this court for relief. In other words, this provision of our criminal procedure act makes it the duty of this court to review the record, and in a proper case, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant. 128 P. at p. 177.

In Williams v. State, supra, 183 Ark. 870, 39 S. W. 2d 295 the defendant killed a policeman during the course of a robbery. The jury found Mm guilty of murder and fixed the sentence at death rather than life imprisonment. On appeal, it appeared that evidence relating to the defendant’s previous criminal conduct had been erroneously admitted during the trial. It was found that this error did not impair the judgment of guilt although it may have prejudiced the defendant on punishment. The Arkansas Supreme Court held that, unless the prosecutor notified it that he elected to proceed with a full retrial, it would modify the conviction by reducing the punishment to life imprisonment. 39 S. W. 2d, at p. 297. The procedure in State v. Sorrentino, 31 Wyo. 129, 224 P. 420, 426-427 (1924) was along the same line. See Hall, supra, 37 Colum. L. Rev., at pp. 774—775; cf. Brown v. United States, 112 U. S. App. D. C. 57, 299 F. 2d 438, 440 (D. C. Cir.), certiorari denied, Thornton v. United States, 370 U. S. 946, 82 S. Ct. 1593, 8 L. Fd. 2d 812 (1962); State v. Berger, 72 Wyo. 422, 265 P. 2d 1061, 1068 (1954).

Reference to Hew Jersey’s constitutional and legislative history, along with the cited out-of-state decisions and their obvious good sense, has left us firmly convinced of the sufficiency of our appellate power to modify a discretionary sentence whenever the interests of justice so require. Since the exercise of discretion is involved it should matter not a whit that the sentencing is by the jury rather than the judge. Indeed it has been suggested elsewhere that since sentencing in each case by a different jury contributes significantly to unfounded disparity between sentences, there is “all the more reason for judicial review in those cases where the jury participates in sentencing.” ABA Project on Minimum, Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, supra, at p. 17. But the matter need not be pursued for the issue before us is a narrower one and our holding may properly be confined to its disposition. Here there was a legal error relating to the sentence alone and the prosecutor, assuming as we find that a new trial on punishment alone is unavailable, seeks modification rather than retrial; in effect the death penalty is being waived. It undoubtedly could have been waived before and during the trial (In re Waiver of Death Penalty, supra, 45 N. J. 501) and there is no rational basis for denying the power to waive now. Indeed it may be noted that since the filing of the earlier opinion in this case (50 N. J. 159) a formal practice rule has been adopted which very broadly provides that “the prosecutor with the approval of the court may waive the death penalty.” R. R. 3:1-3A.

We entertain no doubts as to the validity of the administrative directive which bore on the prosecutor’s authority to waive the death penalty. 45 N. J. 501. Historically the prosecutor has been vested with broad discretionary powers to be exercised in the conscientious discharge of the manifold responsibilities of his office. See State v. LeVien, 44 N. J. 323, 326-327 (1965); cf. Newman v. United States, 382 F. 2d 479, 480-482 (D. C. Cir. 1967); United States v. Shaw, 226 A. 2d 366 (D. C. App. 1967); 28 Mont. L. Rev. 41 (1966); 60 Nw. U. L. Rev. 174 (1965); 103 U. Pa. L. Rev. 1057 (1955). He may in appropriate circumstances determine that a murder indictment is not called for at all (State v. LeVien, supra, 44. N. J., at pp. 326-327); he may-seek and obtain a second degree (N. J. S. 2A:113-2) or a manslaughter (N. J. S. 2A:113-5) rather than a first degree indictment; he may seek and obtain a dismissal or nolle pros. of a first degree or lesser indictment (State v. Hickling, 45 N. J. L. 152, 154 (Sup. Ct. 1883)) ; and he may recommend and obtain acceptance of a plea by a defendant to a murder indictment (N. J. S. 24-113-3) though a plea of a codefendant has been rejected. See Newman v. United States, supra, 382 F. 2d 479; cf. Bedau, Death Sentences in New Jersey, 19 Rutgers L. Rev. 1, 30 (1964).

In all of the cited instances a jury finding of first degree murder without recommendation is of course avoided. At no time has the Legislature questioned the breadth of the general prosecutorial authority nor has it ever cast any shadow on the specific prosecutorial authority to waive the death penalty in a murder case. Such authority was explicitly recognized in our unanimous directive (In re Waiver of Death Penalty, supra, 45 N. J. 501) and has in effect been recognized in cases elsewhere. See Williams v. State, supra, 183 Ark. 870, 39 S. W. 2d 295; State v. Sorrentino, supra, 31 Wyo. 129, 224 P. 420. It finds strong support not only in the legalities but on any considered view of the realities. As a practical matter, whenever the prosecutor decides not to ask for the death penalty he may so tell the jury and that effectively eliminates its return. That being true, it would be utterly wasteful and needlessly burdensome to conduct the trial as though it were a capital case and thereby entail extensive voir dire examinations as to the prospective jurors’ views on capital punishment. There can be no question that the directive furthered, as it said, the public interest and “the fair and expeditious administration of criminal justice.” 45 N. J., at p. 502. It has been implemented in the court rules (R. R. 3:1-34,- B. B. 3:7—2(/) ), has operated with great satisfaction, and is now unhesitatingly reaffirmed.

We are satisfied that a new trial on punishment alone would not be appropriate. See Frady v. United States, supra, 348 F. 2d, at p. 90. Obviously, the old jury could not now be reconstituted; indeed at’ oral argument counsel for the defendant Washington advised that since the trial, one of the jurors had become his client. Nor could a new jury pass on the matter of punishment alone without being familiar with “all the evidence” (N. J. S. 24:113-4; State v. Molnar, supra, 133 N. J. L., at p. 334); that includes all the evidence bearing on the defendants’ commission of the crime. See State v. Mount, supra, 30 N. J., at pp. 215-220. It is conceded that the State would be unable to produce all of the witnesses at the original trial, and any suggestion that a new jury could fairly be called upon to read the many thousands of pages of testimony at the former trial, in lieu of hearing live witnesses, would appear to be too unrealistic to require discussion.

In any event, our present practice does not provide for bifurcated trials, and the opinion which found no prejudicial error relating to guilt in the record of the original trial, was clearly rendered on the premise that no death penalty would be rested on that record and that the choice would be between a modification by this Court or a full retrial. 50 N. J., at pp. 188-189; see Appellate Review of Sentencing Procedure, 74 Yale L. J. 379, 388, n. 52 (1964). See also Meszaros v. Gransamer, 23 N. J. 179, 188-18.9 (1957); State v. Mount, supra, 30 N. J., at p. 213. Whether bifurcation should be adopted for the future is something which need not be dwelt upon here, for the subject patently calls for thorough study including examination of the actual experiences to date in the several states which have such proceedings. The results of such study and examination will undoubtedly warrant presentation in regular course at a forthcoming judicial conference. R. R. 1:23; see Note, The Two-Trial System in Capital Cases, 39 N. Y. U. L. Rev. 50 (1964).

In his separate opinion in Frady v. United States, supra, Judge Burger, after referring to difficulties incident to bifurcated trials, said: “This enumeration of a few of the problems confronting the designers of any two-trial system should make clear the utter folly of institution of such a system except after careful study of all its ramifications. We have not made such a study and we are not equipped to do so in the resolution of an appeal.” 348 F. 2d, at 116; cf Spencer v. State of Texas, 385 U. S. 554, 567, 87 S. Ct. 648, 655, 17 L. Ed. 2d 606, 616 (1967); United States v. Jackson, supra, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138. In United States v. Curry, 358 F. 2d 904 (2 Cir.), certiorari denied, 385 U. S. 873, 87 S. Ct. 147, 17 L. Ed. 2d 100 (1966) it was suggested that, in the absence of a congressional enactment to the contrary, the federal courts would have inherent procedural power to order bifurcated trials; but the court indicated that since such trials do not always work to the advantage of defendants it would be “loath to compel unwilling defendants to submit to a procedure which is devised for their benefit hut which may be prejudicial in its application to a particular case.” 358 F. 2d, at p. 914; see United States v. Jackson, supra, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 ;⁶ Pope v. United States, 372 F. 2d 710, 728-730 (8 Cir. 1967). Needless to say, Laws and Washington are such “unwilling defendants”; in the light of their prior criminal records a retrial limited to punishment alone would inhumanely be death oriented. See 39 N. Y. U. L. Rev. 136, 167 (1964). Understandably their present position is that they should have a full retrial on both guilt and punishment but, as we have already indicated, that would disserve rather than advance the proper administration of justice. Cf. 50 N. J., at pp. 187-189; Frady v. United States, supra, 348 F. 2d 84.

Judicial reluctance to exercise the general appellate modifying power where sentence is concerned has been attributed to long-abandoned aspects of English criminal law which fortunately never had any counterparts in American criminal law. There is little basis for perpetuation of this reluctance, particularly in an enlightened State with a modern judicial structure such as ours. The delegates who drafted the 1947 Constitution deliberately vested this Court with sweeping judicial power to the end that it would be fully equipped to see that justice is soundly administered. Surely, if we are to keep their faith and match their vision, the power may not be found wanting here. The defendants were adjudged guilty of murder in the first degree on wholly sufficient evidence. They had a fair trial which was free from any prejudicial error relating to guilt. There was a sentencing error which may have brought about the death sentences but modification of the penalty to life imprisonment will now remove all possibility of harm from that error. Right and justice call for no greater relief to the defendants whereas the new trial they seek would be a clear imposition on society and might well bring about a gross miscarriage of justice. Under all of the circumstances including the prosecutor’s waiver of the death penalty, we have no hesitancy in concluding that there is adequate appellate power to modify the judgments of conviction, as we now do, so that each of the defendants will stand convicted of murder iu the first degree with sentence of life imprisonment.

Modified.

1 In response to questions addressed to Mm during oral argument, the prosecutor stated that there was “an insurmountable obstacle in this particular case” to a retrial and that he did not think there would be another trial “in view of certain problems”; and in answer to a direct inquiry as to whether he requested the Court to affirm with a life sentence, assuming it had power to do so, he said, “My position is that in view of the circumstances of this case I would say that I would prefer that the Court reduce it to life because” of the retrial problems.

2 In Johnson, supra, the Appellate Division noted that, sentencing matters apart, it could not recall any exercise of discretion “which today is not reviewable.” 67 N. J. Super., at p. 425. And Mueller, in his article on review of sentences, supra, made the following comment:

It has been argued that the review is inconsistent with the trial judge’s discretion. But there is no such thing as an unsupervised discretion; it would be anarchy. This argument could only be made, it would seem, by those who are unaware of the dimensions of “discretion.” 15 Vand. L. Rev., at p. 684.

3 The statement attached to the bill which became L. 1916, c. 270, and which originally set forth that the punishment shall be death unless the jury recommends life imprisonment, read simply as follows:

The purpose of this amendment is to make it possible for the jury, in rendering a verdict of murder in the first degree, to exercise clemency in any case where the death penalty seems too severe under the facts shown in. that particular case.

4 See Mueller, supra, 15 Vand. L. Rev. at pp. 684^685:

Some statutes employing the term “modify” have been construed as not authorizing appellate courts to modify excessive sentences. It might be asked, however, what “modify” means if it does not mean “to modify.” It would seem that lack of statutory authorization cannot be seriously argued where such terminology is used.

5 We need not here determine whether the constitutional infirmity found in Spillers applies to New Jersey’s statutory scheme. See N. J. S. 2A:113-4; 2A:113-3; State v. Sullivan, 43 N. J. 209, 247 (1964), certiorari denied, 382 U. S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966); State v. Reynolds, 43 N. J. 597, 603 (1965); In re Ernst’s Petition, 294 F. 2d 556, 560-562, certiorari denied, 368 U. S. 917, 82 S. Ct. 198, 7 L. Ed. 2d 132 (1961). But see United States v. Jackson, 262 F. Supp. 716 (D. Conn. 1967), reversed, 390 U. S.-, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). If it does apply, the result we have reached in the case at hand would call for no alteration.

6 In Jackson the Supreme Court, in striking the death penalty provision of the Federal Kidnaping Act 18 U. S. C, § 1201(a), declined to construe the Act as authorizing bifurcated trials. In the course of his opinion for the Court, Justice Stewart reiterated the problems which had been listed by Judge Burger in Frady v. United States, supra, 348 F. 2d at p. 116 and made the following comment:

Even in States with legislatively established jury proceedings on the penalty issue, defense attorneys have not always been prepared to take advantage of those features of the penalty trial designed to benefit their clients. See Note, Executive Clemency in Capital Cases, 39 N. Y. U. L. Rev. 136, 167 (1964). If the relative novelty of penalty proceedings has thus impaired effective representation in jurisdictions where the contours of such proceedings have been fixed by statute, it seems clear that the difficulties for the defense would be even more formidable under the amorphous case-by-ease system that the Government asks us to legitimize today. It is no wonder that the Second Circuit, while not foreclosing two-stage trials altogether, was “loath to compel unwilling defendants to submit” to them. United States v. Curry, 358 F. 2d 904, 914. 88 S. Ct. at p. 1216, n. 19.