its verdict declared that his crime was that | bility is on you to determine by your verdict of murder in the first degree. He seeks now whether the facts and circumstances developed to have that conviction reversed for alleged in this case are of such a character as to juserrors contained in the charge of the court to tify you in bringing in such a recommenda the jury. [1] The supplement to the Crimes Act passed in 1916 (P. L. p. 576) provides that in the case of the conviction of a person for murder in the first degree the jury may "recommend imprisonment at hard labor for life, in which case this and no greater punishment shall be imposed." In speaking of this statutory provision, in the charge to the jury, the trial court used the following language: "One of the elements to be considered by you in determining the punishment is that if you shall, by your verdict, impose life imprisonment, it can be disregarded and set at naught by the court of pardons, as well as by the provision of the statute to the effect that every convicted prisoner confined in state's prison for the term of his natural life, whose record of conduct shows that he has observed the rules of the institution, and who has served not less than fifteen years, may be released on parole." The validity of this instruction is challenged by the first assignment of error, for the reason that the only purpose of the trial court, in referring to the fact that Carrigan might be paroled or pardoned, was to improperly influence the jury against a recommendation to life imprisonment. But, assuming that the instruction had a tendency to influence the jury in determining whether or not to recommend life imprisonment, the question is whether it was erroneous on that account, and that, we think, has been settled against the contention of the plaintiff in error by the decision of the Court of Errors and Appeals in State v. Rombolo, 89 N. J. Law, 565, 93 Atl. 434, in which that court, speaking of the supplement of 1916, says: "Naturally one of the elements to be considered by" the jury "in determining that punishment is whether, if they shall by their verdict impose life imprisonment, it can be disregarded and set at naught by the court of pardons. We see no reason why they should not be informed * * with relation to the power of supervision possessed by the pardoning tri bunal." tion." The first criticism upon this instruction is that it comes within the condemnation of the opinion of the Court of Errors and Appeals in State v. Martin, 106 Atl. 385, for the reason that it leaves it to the jury to consider the facts and circumstances of the case in determining whether or not they shall make the recommendation which the statute permits. It is true that the court in the case cited stat ed that whether or not a recommendation should be made by the jury was a matter entirely discretionary with that body, and did not require the support of evidence, because it was not a finding of fact, and that for that reason the trial court was not justified in suggesting to the jury the consideration of the character of the crime as shown by the evidence produced on the question of the But guilt or innocence of the accused as a reason All that The statement that the matter is one which calls for the exercise of discretion is significant. The word connotes absolute freedom to decide according to one's own judgment; and the exercise of judgment necessarily pre sumes the existence of facts or conditions known to the jury, and upon which the judgment of its members is to be exercised. The distinction is between a decision which rests upon the judgment of the party making it and one which is the result of pure caprice, or which is left to be determined by chance; and it needs no argument to satisfy the thinking mind that it was not the intention of the (108 A.) ment to be meted out to the convicted prisoner [ing murder in the first degree. The proposishould be left to the mere whim of the jury, or that it should be determined by drawing lots, or tossing a coin in the jury room. Conceiving that there is nothing in the Martin Case which negatives the right of the jury, in determining the question of punishment, to consider the evidence which has been adduced at the trial, we see no reason why the trial court may not instruct them that they may supplement their verdict by a recommendation of imprisonment at hard labor for life, if they conclude that by reason of the circumstances of the case, or because of any other reason, such action will be justified. [3] It is further said that the last sentence from the extract of the charge, viz.: "The responsibility is on you to determine by your verdict whether the facts and circumstances developed in this case are of such a character as to justify you in bringing in such a recommendation" -requires the jury to determine the question of recommendation vel non entirely from the facts and circumstances which were proved in the case, and it is said that this is clearly within the condemnation of State v. Martin. It would be, if considered as an isolated instruction; but it is to be read in connection with what preceded it, and we think that the whole instruction made it quite plain to the jury that they should consider, not only these facts and circumstances, but also their duty to the community, the obligation of their oaths, and any other reason which should be pertinent in the determination of that mat ter. [4] Counsel for the defendant requested the court to charge that: "If the jury find that there existed in the defendant's mind an irresistible impulse to take the life of the deceased, and the shooting took place under the influence of such an impulse, the defendant cannot be convicted of murder in the first degree." And the refusal of this request is also assigned as a ground for reversing this conviction. The fundamental proposition embodied in the request is that an act done under an irresistible impulse cannot as a matter of law be willful, deliberate, and premeditated, within the meaning of our statute defin tion is untenable. Conceding for the moment that the law recognizes the existence of an impulse which is irresistible as an element to be considered in determining the grade of a criminal homicide, the question in every case where that element exists is whether the act was willful, deliberate, and premeditated, notwithstanding that its perpetration was the result of such impulse; and that question is clearly one of fact to be settled by the jury, for it involves the mental operations of the defendant, and they are not to be resolved by the arbitrary application of legal rules, but by a consideration of the facts and circumstances of the case which throw light thereon. [5] We think, also, that the request was properly refused upon a broader ground. We consider to be unsound the suggestion that the law recognizes a form of insanity in which the faculties are so affected that the person suffering from it, although he perceives and appreciates the moral quality of his acts, is unable to control them, and is urged by some mysterious pressure, which he cannot resist, to their commission. It may be that such a mental condition is recognized by medical or scientific authority, but the doctrine that a criminal act may be excused or mitigated upon the notion of an irresistible impulse to commit it, where the offender has the mental capacity to appreciate his legal and moral duty, in respect to it, has no place in the law. And this we understand to be the view expressed by the Court of Errors and Appeals in Genz v. State, 59 N. J. Law, 488, 37 Atl. 69, 59 Am. St. Rep. 619; the declaration of the court, in affirming a conviction of murder in the first degree, being that "Where insanity is set up as a defense to an indictment for murder, unless it appears that the prisoner was not conscious, at the time of the killing, that the act which he was doing was morally wrong, he is responsible, even if it be shown that he was impelled to its commission by an impulse which he was unable to resist." Only those reasons for reversing the conviction which have been discussed by us were argued by counsel for the defendant. Finding no legal merit in them, we conclude that there must be an affirmance. (93 N. J. Law, 485) STATE v. TACHIN et al. (No. 21.) (Court of Errors and Appeals of New Jersey. Nov. 17, 1919. Dissenting Opinion by Judge Kalisch, Dec. 6, 1919.) Error to Supreme Court. of the Union and the maintenance of the national government. Were the rule otherwise, it is manifest that a citizen could be twice indicted and tried for the same offense in the federal and state jurisdictions, respectively, contrary to the constitutional inhibition, which provides that he shall not be twice put in jeopardy for the Fred Fedodoff and Tony Tachin were consame offense. Article 5, Const. Amendments. victed of willfully, knowingly, and unlawful-The rule is unquestionable that each governly attempting by speech to incite, abet, pro- ment, state and federal, is supreme within its mote, and encourage hostility and opposition own sphere, and therefore a conviction or acto the government of the United States, and quittal in the state jurisdiction could not be they bring error. Affirmed. Otto A. Stiefel, of Newark, for plaintiffs in error. Pierre P. Garven, of Bayonne, for the State. pleaded in bar to a similar indictment in the federal jurisdiction. Dodge v. Woolsey, 18 How. 331, 15 L. Ed. 401; Ableman v. Booth, 21 How. 506, 16 L. Ed. 169; United States v. Tarble, 13 Wall. 397, 20 L. Ed. 597. The cases cited in the Supreme Court, as a basis for sustaining this enactment, upon ex PER CURIAM. The judgment under review herein should be affirmed, for the rea-amination will be found not to conflict with sons expressed in the opinion delivered by Mr. Justice Swayze in the Supreme Court. 92 N. J. Law, 269, 106 Atl. 145. MINTURN, J. (dissenting). The unconstitutional character of the legislation sub judice is properly before us, both on the motion to acquit and the exception to the charge. In any event the question is jurisdictional and may be considered here. State v. Shupe, 88 N. J. Law, 610, 97 Atl. 271. The statute (chapter 44, Laws 1918) under which these defendants were jointly indicted and convicted is a replica of a statute passed by the Congress of the United States over a year prior to the act sub judice, and in that fact inheres the constitutional infirmity of the state legislation. The rule is settled that the legislation of Congress upon a subject within the limitations of the Constitution supersedes all state legislation, and by necessary implication prohibits it. Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ed. 1060; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23. It is not the mere existence of the power of Congress to legislate, where the power is not exclusive, but the fact that Congress has exercised the power, which makes the exercise of the same power by the state incompatible with the exercise of the federal power, and the power of the state to enact similar legislation is thereby suspended until the repeal of the federal act. Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529; Davis v. Beason, 133 U. S. 333, 10 Sup. Ct. 299, 33 L. Ed. 637. In Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 19, Washington, J., declared, at a formative period of our constitutional law, the states cannot legislate upon a subject concerning which Congress has already legislated under constitutional authority. And in Texas v. White, 7 Wall. 700, 19 L. Ed. 227, it was declared that the preservation of the states and the maintenance of their governments are as much within the design and care of the Constitu this principle, and it will be observed that they apply solely to situations where the state legislated in the absence of congresssional legislation, or where by the federal act the right of the state to legislate concurrently was expressly conceded. Thus in the earliest case cited (Fox v. Ohio, 5 How. 410, 12 L. Ed. 213) the federal legislation conceded to the states concurrent jurisdiction over counterfeiting. In United States v. Marigold, 9 How. 560, 13 L. Ed. 257, state legislation was not involved, and the court dealt only with an act of Congress. In Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717, the question was as to the enforcement of federal election laws by state officials, by which legislation the latter were created by Congress pro hac vice federal officers in the elections concerning members of Congress. The same question was presented in Ex parte Clarke, 100 U. S. 399, 25 L. Ed. 715. In Re Loney, 134 U. S. 373, 10 Sup. Ct. 584, 33 L. Ed. 949, the power of the federal courts to punish for perjury a person who falsely swore to his right to vote, before a state notary, in a congressional election, was presented, and it was again held that pro hac vice the notary was performing a federal function. In Sexton v. California, 189 U. S. 319, 23 Sup. Ct. 543, 47 L. Ed. 833, the extortion act, passed by Congress to prevent frauds in the internal revenue, expressly conceded to the states the power to pass similar legislation, thus impliedly denying the right to the states in the absence of such concession. In Halter v. Nebraska, 205 U. S. 34, 27 Sup. Ct. 419, 51 L. Ed. 696, 10 Ann. Cas. 525, no federal question involving state jurisdiction was involved. The only inquiry was as to the constitutionality under the Fourteenth Amendment, in the absence of congressional legislation, of an act of Nebraska prohibiting the use of the United States flag for advertising purposes in certain lines of trade and not in others. (108 A.) militates against the fundamental constitu- "the lamp which guides our destiny" (to tional rule, which was evolved when the settled construction of the Constitution was in the making, and which by repeated adjudications has been emphasized since that day, notably so in the recent Employers' Liability Cases, involving the right of the state to legislate upon that subject, in the absence of federal legislation dealing with interstate commerce. Such was the status in the recent case of New York Cent. R. R. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139, in which it is said: "When Congress acts upon the subject, all state laws covering the same field are necessarily superseded by reason of the supremacy of the national authority." The second and third sections of the act sub judice are subject to further condemnation. They characterize as illegal, not only an appeal to subvert the government by force, but also any attempt "by speech, writing, printing or in any other way whatsoever to incite or abet, promote or encourage hostility or opposition to the government of the United States, or of the state of New Jersey." The third section of the act provides that"Any person who shall become a member of any organization, society or order organized or formed, or attend any meeting, or counsel or solicit others so to do, for the purpose of inciting, abetting, promoting or encouraging hostility or opposition to the government of the United States, or of the state of New Jersey, or who in any manner shall aid, abet or encourage any such organization, society, order or meeting in the propagation or advocacy of such a purpose, shall be guilty of a high misdemeanor." These provisions, prohibitive of the right of free speech, freedom of the press, and of free assembly, are in direct conflict with the guaranties of free speech and free assembly contained in the federal and state Constitutions. The First Amendment to the federal Constitution provides that "Congress shall make no law * * abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." quote the trial court) will be as effectually extinguished as the lamp that shone at the shrine of Isis. "The right of the people," says the United States Supreme Court, "peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the national government," and "existed long before the adoption of the federal Constitution." United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Presser v. Illinois, 116 U. S. 266, 6 Sup. Ct. 580, 29 L. Ed. 615. Change of the fundamental law by constitutional and legal methods is not condemned, either by the Constitution or the public poli cy of the nation or states. George v. Brad. dock, 45 N. J. Eq. 757, 18 Atl. 881, 6 L. R. A. 511, 14 Am. St. Rep. 754. The right to effect a change or alteration of the organic law by lawful methods is the basic doctrine of popular rights, contained in the Declaration of Independence; and in pursuance of that declared policy, party organizations have been created since the inception of our system of government, and as a result of that basic declaration no less than 18 amendments have been added to the federal Constitution, many ods and structure of our government, as origof them presenting radical changes in methinally conceived and ordained. This fundamental conception of party government, involving alteration and change by the recognized and prescribed constitutional methods, is set at naught, and substantially subverted, by the legislation under consideration. The sole prototype of this legislation in American constitutional history is found in the Alien and Sedition Acts of the Adams administration, under the obloquy of which the Federal party went into extinction and oblivion. Speaking of those enactments, the biographer of John Adams reflects the verdict of history when he says: "No one has ever been able heartily or successfully to defend these foolish enactments of ill-considered legislation, which have to be abandoned by tacit general consent to condemnation." Morse's Life of John Adams, p. 283. If legislation of this character is to pass unchallenged by courts of justice, whose officers are sworn to uphold the Constitution as The state Constitution (article 1, § 5) pro- time is not inopportune for a revision of the the very bedrock of our legal system, the vides that "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." The principle of free speech and freedom to assemble constitutes the corner stone of American liberty, and when the right to exercise those fundamentals without the advocacy of force is quiescently suppressed, fundamental law, comporting with the excision of the guaranties contained in the Bill of Rights, and Magna Charta, which have been the cherished legacy of British and American law since the epochal day at Runnymede. Nor is it perceivable how party government, which is essentially one of criticism, for the avowed purpose of "promoting opposition to the government," can at all subsist in such an atmosphere of constructive illegal ity. The presence of such legislation upon, review on a strict writ of error and bills of the statute book is not only subversive of exceptions, and that tribunal affirmed the personal liberty to speak, write, and publish judgment. The record being brought before one's sentiments upon government policies, us for final review, the majority of the court and in criticism of the acts of state and national agencies, rights which were upheld in the seventeenth century, in the King's Bench in England, by Lord Erskine, in the famous trials of Hardy and Lord George Gordon, but its legal recognition is equally subversive of constitutional and party government, and must inevitably supersede it, by the substitution of a Napoleonic bureaucracy, in which the inevitable coup d'état awaits only the advent of the man on horseback. Nor is its evil tendency limited to the continuance of the hectic exigency which engendered it, upon the theory of the civil law that "inter armes leges silent," a doctrine which, in the absence of a legitimate proclamation of martial law, has no place in constitutional government, but it extends its corroding insidious influence into the public mind and conscience, which to-day complaisantly applies its provisions to these unsophisticated Russians at the bar, and to-morrow, adopting the precedent thus set, drags from the tribune a Patrick Henry, a John Brown, or a Wendell Phillips to emphasize the absolute destruction of a constitutional ideal. If one of these defendants be legally chargeable with an appeal to armed force (for there is no testimony of the kind against Tachen), the ordinary statute law of New Jersey, and the United States, superadded to the common law, present ample provision for his prosecution; but to a conviction based upon this extraordinary unconstitutional legislation I cannot extend my concurrence or approval. I am requested by Mr. Justice KALISCH to state that he concurs in these views. KALISCH, J. (dissenting). The plaintiffs affirmed the judgment of the Supreme Court on the opinion given by the latter tribunal. I am constrained to dissent from the result reached in this court, and will state as briefly the reasons for my disagreement as the important subjects to be discussed will permit. The statute of 1918, which is the sole basis for the indictment, inter alia, provides: "Any person who shall advocate, in public or private, by speech, writing, printing, or by any other means, the subversion or destruction by force of the government of the United States, or of the state of New Jersey, or attempt by speech, writing, printing, or in any other way whatsoever to incite or abet, promote or encourage hostility or opposition to the government of the United States, or of the state of New Jersey, shall be guilty of a high misdemeanor," etc. I concur in the view of the learned judge who wrote the opinion of the Supreme Court, that ""Hostility or opposition to the government of the United States, or of the state of New Jersey,' means such hostility or opposition as involves the 'subversion or destruction by force' of those governments." As the indictment alleges that the utterances of the plaintiff in error were made in public, it relieves me from commenting upon the constitutionality of that part of the statute which relates to private writings or. utterances, except to observe that the legislation in this respect is a revival of a species of legislation born of the zeal of the times of James I, and condemned in no uncertain terms by Mr. Foster in his Crown Law (Ed. 1762) pp. 198-208. in error were convicted in the Hudson county court of quarter session on an indictment The statute is aimed at seditious utterings which charged them jointly that theyor writings which may lead to an attempt "did willfully, knowingly, and unlawfully at- at treason-that is, to subvert or destroy tempt by speech to incite, abet, promote, and government by force, such as levying war encourage hostility and opposition to the gov-against it, etc. This is the apparent sense ernment of the United States, in that in the of the construction given to the act by the presence of divers good people then and there assembled, did publish, utter, pronounce, declare, and say with a loud voice to the persons there assembled in substance that the present war, in which the government of the United States is now engaged with Germany, was a war for the benefit of the capitalists of the world only; that the President of the United States at the behest of the capitalists was sending our men to France to be slaughtered; that we the people of the United States did not need any government, and that the persons here should arm themselves for protection against the government, contrary to the form of the statute," etc. The judgment pronounced on the convic Supreme Court and adopted by this court, which construction appears to me to be only logical deduction flowing from the language of the act, though the act appears to be of doubtful validity in view of article 1 of the Constitution of this state, which declares: "Treason against the state shall consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court" -and in view of paragraph 5 of article 1 of the Constitution, which declares, inter alia: "No law shall be passed to restrain or abridge |