For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
This is an appeal under Art. VI, § V, par. 1(a) of the Constitution of 1947 from the Appellate Division's reversal of the judgment of acquittal entered in the County Court. See City of Newark v. Martin, 22 N.J. Super. 32 (1952).
The defendant John W. Martin operated a parking lot at 341 Washington Street, Newark. On September 28,
1951 a complaint was filed against Martin in the municipal court charging that his operation of the parking lot was in violation of Newark's zoning ordinance and on October 15, 1951 he was convicted and fined $200. He appealed to the County Court under Rule 2:11 and after a trial de novo was found not guilty on the ground that the operation of a parking lot had not been interdicted by the terms of the ordinance. Thereupon Newark filed notice of appeal to the Appellate Division and in due course its appeal was argued. On October 7, 1952 the Appellate Division filed its opinion in which it found that Newark's ordinance did prohibit parking lots in the zone which included Martin's premises and reversed the judgment of the County Court. On October 17, 1952 Martin filed a petition for rehearing on the ground that the judgment of the County Court constituted an acquittal on a criminal charge and was not appealable. See State v. Hart, 90 N.J.L. 261 (E. & A. 1917). The petition for rehearing was denied on November 14, 1952. On the following day Martin died and his death was suggested on the record. On December 5, 1952 notice of appeal to this court was filed by Elizabeth L. Pulverman as executrix under the last will and testament of John W. Martin (see Rule 1:2-3 A) and in support thereof the appellant urges that, under Art. I, par. 11, Const. of 1947 and Rule 2:11(h)(5), the Appellate Division could not properly entertain an appeal from the judgment of acquittal entered after trial de novo in the County Court. The respondent while urging the contrary, suggests that since this issue was not raised in the Appellate Division prior to the petition for rehearing, it may not be entertained here. The issue is an important one of public concern and ought be considered; there is no question as to our power to do so. See Rule 1:2-19(a); Rule 1:2-20(c); In re Stern, 11 N.J. 584 (1953); State v. Jones, 4 N.J. 374, 377 (1950).
In the well known case of Kepner v. United States, 195 U.S. 100, 24 S. Ct. 797, 49 L. Ed. 114 (1904), the court divided on the issue of whether the common law prohibition against double jeopardy, embodied in the Fifth Amendment
and in many state constitutions, operated to prevent an appeal by the prosecution after judgment of acquittal on a criminal charge. The majority, through Justice Day, took the position that it did, whereas the minority, through Justice Holmes, took the contrary position, asserting that the prohibition was confined to jeopardy in a new and independent case. See Cardozo, J. in Falko v. State of Connecticut, 302 U.S. 319, 322, 58 S. Ct. 149, 82 L. Ed. 288, 290 (1937). The majority's view has the support of numerous state court decisions (Ex parte Bornee, 76 W. Va. 360, 85 S.E. 529, L.R.A. 1915 F, 1093 (1915); 113 A.L.R. 636, 637 (1938); 157 A.L.R. 1065, 1066 (1945)), although it has been attacked in law review articles. See Miller, Appeals by the State in Criminal Cases, 36 Yale L.J. 486 (1927); Comley, Former Jeopardy, 35 Yale L.J. 674 (1926). In his article Justin Miller urges, with some force, that granting the right of appeal to the prosecution will significantly advance the sound administration of criminal justice without impairing the ever present requirement that there be a fair trial and a final judgment in conformity with law in the single case which may be maintained on the charge against the accused. See A.L.I., Administration of the Criminal Law, § 13 (Proposed Final Draft, 1935); 12 Proceedings, A.L.I., 200 (1934-1935).
In Palko v. Connecticut, supra, the Supreme Court held that a statute which permits appeal by the state in criminal proceedings does not violate the Fourteenth Amendment. No state constitutional provision against double jeopardy was there involved, but in State v. Brunn, 22 Wash. 2 d 120, 154 P. 2 d 826, 157 A.L.R. 1049 (Sup. Ct. 1945), and State v. Witte, 243 Wis. 423, 10 N.W. 2 d 117, 119 (Sup. Ct. 1943), statutes were sustained notwithstanding such provision. In the Brunn case the statute permitted appeals in all criminal cases except where there was an acquittal by a jury, and in the Witte case it permitted appeals in criminal cases "From rulings and decisions adverse to the state upon all questions of law arising on the trial, with the permission of the presiding judge, in the same manner and to the same effect as
if taken by the defendant." Cf. State v. Evjue, 254 Wis. 581, 37 N.W. 2 d 50 (Sup. Ct. 1949); State v. Portee, 25 Wash. 2 d 246, 170 P. 2 d 326 (Sup. Ct. 1946). In both the Brunn and Witte cases the courts expressly approved the position of Justice Holmes in the Kepner case that the principle against double jeopardy forbids trial in a new and independent case but does not forbid more than one trial in the same case. See State v. Lee, 65 Conn. 265, 30 A. 1110 (Sup. Ct. Err. 1894); Robb v. State, 190 Md. 641, 60 A. 2 d 211 (Ct. App. 1948).
Unlike the language in the Fifth Amendment which provides that no person shall be put twice in jeopardy for the same offense, our State Constitution provides that "No person shall, after acquittal, be tried for the same offense." See Art. I, par. 10, Const. of 1844; Art. I, par. 11, Const. of 1947. The available reports of the proceedings of the 1844 Convention indicate that the change in phraseology was primarily designed to avoid the possibility that a defendant be held immune from further prosecution under the double jeopardy prohibition (State v. Cooper, 13 N.J.L. 361, 370 (Sup. Ct. 1833)) where his first trial ended in a jury disagreement or disposition other than verdict of acquittal. Proceedings, New Jersey Constitutional Convention of 1844 (1942), 153, 412. Cf. State v. Brunn, supra, with State v. Hall, 9 N.J.L. 256, 258 (Sup. Ct. 1827). See 2 Constitutional Convention of 1947 (1951), 1352.
In Smith and Bennett v. State, 41 N.J.L. 598 (E. & A. 1879), the court dealt with the defendant's contention that his conviction of the crime of murder having been reversed on appeal he could not, under the common law principle against double jeopardy, be brought to trial again for the same offense. The court unanimously rejected this contention in an opinion by Chief Justice Beasley which discussed ...