On error to the Essex County Court of Oyer and Terminer.
For the plaintiff in error, Samuel I. Kessler.
For the state, Joseph L. Smith, Joseph E. Conlon and Harold H. Fisher.
The opinion of the court was delivered by
KAYS, J. The plaintiff in error was indicted for murder. He was found guilty of murder in the first degree by a jury in the Court of Oyer and Terminer of the county of Essex. The entire record of the proceedings had upon the trial in the court below was returned into this court by the plaintiff in error under the one hundred and thirty-sixth section of the Criminal Procedure act (Pamph. L. 1898, p. 866), and under section 137, Ibid. He also brings the case here on a strict writ of error. Plaintiff in error specifies fifty-six causes in the record upon which he relies for reversal. These causes for reversal are argued by counsel for the plaintiff in error under twelve points. We have examined all the points argued and find them without merit except as to three. The three consist of the ninth, fifteenth and twenty-seventh assignments
of error and specifications of causes for reversal which are argued together under point two in the brief of counsel for the plaintiff in error which is as follows: "Because the trial court erroneously admitted the testimony as to the plea of guilty which defendant had entered upon his arraignment at the Fourth Precinct Court and upon his pleading to the indictment before the trial court." In respect to the admission of evidence as to the plea of the plaintiff in error before the magistrate, a witness was called by the state who was present at the time the prisoner was arraigned. The witness was asked what answer the plaintiff in error made when the complaint was read to him. This question was objected to by counsel and was allowed by the court on the ground that it was an admission against interest. After this ruling of the court, to which an exception was taken, allowed and signed and sealed, the witness answered that the plaintiff in error pleaded guilty.
At the trial at the Essex Oyer and Terminer the plaintiff in error testified in his own behalf. During the cross-examination by the state the court interrogated the plaintiff in error and asked him if he was not charged with murder when he pleaded in the Fourth Precinct Court, to which the witness replied that he was. The court then asked him if he did not plead guilty and the prisoner replied in the affirmative. The court then asked the prisoner if he knew at that time what the penalty for murder was and the prisoner replied that he did not. To these questions counsel for the plaintiff in error objected but the court stated that the questions which he was asked were proper and continued with the examination of the plaintiff in error relative to his plea before the magistrate and also as to whether the plaintiff in error knew the penalty for murder. The plaintiff in error stated that he did not know the penalty for murder at the time he pleaded before the magistrate and that he was told by the officers that if he did not plead guilty they would kill him. The court then continued with the examination of the plaintiff in error and asked him whether he did not plead guilty before the Court of Oyer and Terminer at the trial [109 NJL Page 534] which was then in progress. The prisoner admitted that he pleaded guilty at the trial before the Court of Oyer and Terminer and that he had pleaded guilty in the Court of Oyer and Terminer because he had pleaded guilty before the magistrate. To these questions exceptions were taken and allowed. There was also evidence of confessions made by the accused. Counsel for the plaintiff in error contends that the defendant below was injured by the court's admitting in evidence the pleas above referred to for the reason that the Crimes act (2 Comp. Stat., p. 1780, § 107) provides that, "in no case shall the plea of guilty be received upon any indictment for murder; and if, upon arraignment, such plea of guilty should be offered, it shall be disregarded, and the plea of not guilty entered, and a jury, duly impaneled, shall try the case in manner aforesaid;" and also for the reason that a plea of guilty after being withdrawn cannot be used as evidence of guilt of the accused. The state on the other hand contends that this is not the law and that a plea of guilty after it is withdrawn can be used against the accused for the purpose of showing the state of mind as affecting the voluntariness of his confession and his knowledge of the act of which he was accused. The state cites several cases from other states mostly bearing on the question of confession and which do not appear to be in line with the questions involved in this case. The state also refers to the case of State v. Hand, 71 N.J.L. 137, 139. In the case of State v. Hand, the action was for a violation of the Oyster law of this state and involved a summary procedure before a magistrate whereby the defendant was tried for a misdemeanor under that act. The defendant in the Hand case pleaded guilty and afterward withdrew his plea of guilty and entered a plea of not guilty on which he was tried. There was no law which directed that a plea of guilty should not be accepted and the defendant in the Hand case was on trial for a misdemeanor and not for murder. The Hand case, therefore, is quite different from the case at bar. No cases have been cited in this state where a plea of guilty of murder in the first degree has been attempted to be offered in evidence nor have we been
able to find any. It is contended by the state that the plea of guilty might be used in an effort to corroborate the confession or that it is in itself a confession to the court. A confession differs greatly from a plea of guilty of murder. The former is a statement of facts or the acts of the accused in the commission of the crime from which the court or a jury may determine the degree of the crime. A plea of guilty of murder does not set forth the facts but must assume that the prisoner knew the law, which, when applied to the facts, would make him guilty of murder in the first degree; that is, the act of killing must have been willful, deliberate and premeditated, and the accused must understand what is meant by willful, deliberate and premeditated killing. In the case under review the prisoner was a Negro, who was accused of killing a Negress, a prostitute. The accused was apparently a man of little education, had just previous to the murder met the Negress in a house of ill repute and was, at least partially, under the influence of liquor. There was no evidence in the case as to the whereabouts of the plaintiff in error for several hours before the murder or of the decedent for several hours before she was killed except the admissions of the plaintiff in error himself. The court stated in its charge that certain evidence in the case bore upon the fact as to whether or not the defendant killed the decedent. After referring to a number of admissions made by the prisoner he said: "Fourth, he admitted it before the Police Court, before the judge of that court, when he was brought there and charged with it. Fifth, he admitted it in this court when he was brought here and arraigned on the indictment which we are now trying according to the testimony of the state."
The provision of the Crimes act, above referred to, which prevented the entry of a plea of guilty when charged with murder, was first enacted in this state in 1893, and since that time a plea of guilty of murder, if made, must be disregarded and the accused put upon trial. If after a plea of not guilty of murder is ordered entered by the court and the state is then allowed to prove that the defendant pleaded guilty it
nullifies the very purpose of the act, for if one pleads not guilty to a charge of murder he is presumed to be innocent. This is the rule which was followed by the California court in the case of ...