The defendant has been indicted for murder. The indictment is in the usual form. To this she has offered to plead " Non vult to murder in the second degree." Quere -- does this plea, if accepted, prevent the court from imposing a life sentence?
At common law there were no degrees of murder. In this State murder was first defined by degrees in P.L. 1838, p. 182, by which statute three degrees were established and which later, by the revision of 1846, were reduced to two, and it was then provided that upon conviction on confession in open court, the court should proceed by examination of witnesses to determine the degree of the crime and give sentence accordingly. The constitutionality of this statute was upheld in Hallinger v. Davis , 146 U.S. 314, decided November 28, 1892, in which case the defendant was sentenced to be hanged by the court on his confession and after examination of the witnesses as provided in the statute. At the very next session of the Legislature, undoubtedly as a result of the Hallinger case , the power of the court to inflict capital punishment upon the confession of the defendant was abolished (see P.L. 1893, p. 82) and it was provided that on a plea of non vult the
punishment was to be limited to that imposed upon a conviction of murder in the second degree. This act was incorporated as Section 107, P.L. 1898, p. 825.
By P.L. 1917, p. 801, it was provided that upon the acceptance of a plea of non vult or nolo contendere the sentence to be imposed "shall be either imprisonment at hard labor for life or the same as that imposed upon a conviction of murder in the second degree," and so stands the law at this time. See R.S. 2:138-3.
The indictment in this case is in the statutory form. It charges murder, but not murder in any particular degree, for what was murder at common law is still murder and the only reason for the statutory division into first or second degree is with a view to a difference in the punishment. Graves v. State , 45 N.J.L. 347, at p. 358.
"The statute did not make murder of the first degree a separate and distinct crime from murder of the second, but murder of each grade, after the passage of the statute, continued to be, as it had theretofore been, the crime of murder. The indictment in the statutory form is for the crime of murder, without regard to the degree. * * * The offense for which he is called to answer is charged in the indictment. It is murder." Graves v. State , 45 N.J.L. 347, at p. 358 (E. & A.); Brown v. State , 62 N.J.L. 666 (E. & A.).
Formerly if the plea was accepted by the court, the punishment was to be the same as upon conviction of murder in the second degree. The addition of the words "either imprisonment at hard labor for life" did not alter the right of an accused from one of grace to that of an absolute privilege. State v. Martin , 92 N.J.L. 436, at p. 438. The added words relate only to the penalty flowing from the acceptance of such a plea, and "merely enlarge the discretionary power of the court as to character of punishment." Ibid.
Can this discretionary power of the court granted by the Legislature be curtailed by a defendant whose power to plead non vult or nolo contendere is simply one of grace? I think not.
A plea of nolo contendere is an implied confession of the crime of which the defendant is charged with committing.
1 Burn's Justice 388; 2 Hawkins P.C. 225; Peacock v. Hudson Quarter Sessions , 46 N.J.L. 112; State v. Henson , 66 ...