On error to the Salem County Court of Oyer and Terminer.
For the defendant in error, William A. W. Grier, prosecutor of the pleas of Salem county.
For the plaintiff in error, Joseph Narrow.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiff in error was convicted of murder in the first degree and on August 22d, 1939, was sentenced to death.
Nine assignments of error and specifications of causes for reversal are argued. That which we consider a substantial question is raised in the main by assignments numbered 2, 3 and 8. These therefore will be considered as well as any other matter on this appeal cognate thereto.
Under these assignments there is presented the fact that illicit evidence was admitted at the trial, to wit, testimony that Leaks, the defendant below, had pleaded guilty to the murder when arraigned before a justice of the peace, and it is argued that this was harmful error even though the court, on the day following the reception of this testimony, instructed the jury to disregard it; further, that it was error for the court to deny defendant's motion for a mistrial which was made almost at the end of the entire case and was based in part upon the fact that evidence of such guilty plea, made as aforesaid, had been received.
The plaintiff in error, Willie Leaks, a Negro boy, was found by the jury to have murdered Howard H. Mead, an aged farmer of Upper Pittsgrove township in Salem county. Leaks stopped at the decedent's home either for the purpose of robbing him or, once there, conceived the notion of so doing perhaps after he talked with him. The homicide was done in an outbuilding of the farmhouse known as the "pump shed" with a piece of "well pipe," the decedent having been struck across the head with it; the result was that his skull was fractured in several places. Thereafter Leaks stole the sum of $12 from decedent's purse, which he found in the house.
The evidence, challenged as illegal, was admitted under these circumstances: Samuel McWilliams, Jr., a justice of the peace of the county, testified that he gave defendant a hearing on July 24th, 1939; he produced the complaint on which a warrant for the arrest of Leaks had been issued, and, against objection that same was neither relevant nor material, it was received in evidence; an exception was entered; the witness was then asked if he read the complaint to the defendant and he answered in the affirmative; he was asked how the defendant pleaded and his answer was "his plea was guilty." No objection was offered against this testimony. The trial
not being concluded on that day, the court, on the day following, declared to the jury that the testimony of Mr. McWilliams as to the complaint and the plea which the defendant entered was not proper evidence and that it was not to be considered by the jury in "any manner, shape or form" in reaching a verdict. Toward the very end of the whole case defense counsel stated that he "would like to make several motions" at the side bar. What transpired between counsel and the court we have no way of knowing. Presuming, at any rate, some motion was addressed to the court, it next appears that the court said, "by reason of the other statement I made, striking the testimony of Mr. McWilliams, Exhibit S-9, the complaint (i.e., that which the justice of the peace produced) will also be withdrawn." Was the admission of this evidence prejudicial error calling for a reversal? Our statute will not tolerate a guilty plea to an indictment for murder. R.S. 2:138-3 provides, "In no case shall the plea of guilty be received upon an indictment for murder and if, upon arraignment, such plea shall be offered, it shall be disregarded and the plea of not guilty entered and a jury duly impaneled to try the case in the manner aforesaid." But this statute, by its express language, does not solve the difficulty here. The situation under consideration is different. No plea of guilty was entered at the trial -- only evidence that such plea had been stated elsewhere when the accused was arraigned before a justice of the peace. But we cannot rest on bare technique because no plea of guilty was formally received in the trial court. It is equally hostile to the philosophy of our statute to receive proof that a plea of guilty was, as here, entered elsewhere. The statute, in language that is precise and comprehensive, is most convincing on what our public policy is on this issue. To receive a plea of guilty flies in the face of the statute; to receive evidence that such a plea was entered on a preliminary hearing does violence to our public policy as ordained by the statute, supra, by ignoring it. Cf. State v. Smith, 109 N.J.L. 532, and cases therein cited.
It requires very little reflection to conclude that if, as a matter of public policy, a plea of ...