On appeal from the Superior Court, Law Division.
For reversal -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt. The opinion of the court was delivered by Wachenfeld, J. Jacobs, J., concurring in result.
The appellant was indicted for the murder of Mabel Dukin in Morris County on October 16, 1953. After a plea of not guilty and in answer to a demand for a bill of particulars served upon him by the State relating to his alibi, he named Floyd Allen and Edward Kelly as witnesses.
The State claimed the murder was willful, deliberate and premeditated and was committed in the perpetration of a robbery. It proceeded upon the theory that the killing might have taken place as a result of conspiracy in which Locklear was a principal.
The agreed statement of the case admits the evidence presented "tended to show that the defendant was guilty of the offense charged," but notes there were no eyewitnesses who could identify him. Although he admitted knowing a robbery was to be committed and that he received part of the booty, nevertheless he insisted he took no active part in it or the resulting murder and contends that Allen and Kelly were the actual perpetrators of it.
These two, who had not been indicted by a grand jury, were held by the State as material witnesses, and during the trial they both testified for the State, saying they were elsewhere and insisting they had no knowledge of the crime itself.
The trial was long, requiring 19 full trial days, and after the testimony was all in on both sides and counsel were about to sum up, a conference was requested with the trial judge and defense counsel. The prosecutor there disclosed that in the evening following the completion of the testimony and after the court recessed, witnesses voluntarily presented
themselves to the prosecutor's office and signed statements to the effect that the missing pocketbook alleged to have been carried by Mrs. Dukin at the time of the assault had been found by them in a car which they obtained from Floyd Allen and that they had deliberately destroyed it, fully cognizant of its importance.
In the presence of the jury, the prosecutor then moved for a mistrial, advising the court that the State had discovered new evidence which had been willfully suppressed, was material to the case, and might, after complete investigation, result in the trial and conviction of all parties responsible for the murder. He asserted the true ends of justice would be served best by such proceedings, as all the parties allegedly guilty would then be charged with the crime and brought to trial and adjudged on their respective merits. He announced a new complaint had been made charging the defendant, Allen and Kelly jointly with murder.
Vigorous objections to the motion for a mistrial were made on the grounds that it constituted double jeopardy, was prejudicial, and in violation of the defendant's rights. The record shows the defendant's counsel demanded and repeated his insistence many times that the court "allow this jury to hear this new evidence and to hear the new witnesses so that they, the jury, having heard the balance of the case, can determine from the new evidence which should be brought before them as to the guilt or innocence of the defendant." His objections, however, were overruled and the motion for a mistrial granted.
A new joint indictment against the appellant, Allen and Kelly was returned by the grand jury for the same offense, to which the prisoner entered a plea of autrefois acquit. The plea having been stricken by the court below, the prisoner appealed, claiming error and contending the discharge of the trial jury was improper and as a matter of law was equivalent to an acquittal and a discharge of the defendant.
The ruling, it is said, was arbitrary and contrary to fundamental legal principles and trespassed upon the common law and the constitutional rights of the prisoner.
There is a wealth of material on the topic of double jeopardy. Termed an ancient doctrine rooted in the common law, it is said to reflect the express provisions of the Constitution of both the State and Federal Governments, and the principle was secured by the successive Constitutions of our State. State v. Cooper, 13 N.J.L. 361 (Sup. Ct. 1833); State v. Di Giosia, 3 N.J. 413 (1950); State v. Labato, 7 N.J. 137 (1951). Cf. City of Newark v. Pulverman, 12 N.J. 105 (1953), pointing out the change in phraseology between the Fifth Amendment of the Federal Constitution and the double jeopardy provision of our State Constitutions of 1844 and 1947. Art. I, par. 10, Constitution of 1844; Art. I, par. 11, Constitution of 1947.
Just when a person accused is first put in jeopardy at a trial on a charge of committing a crime is a question upon which the authorities are not agreed. 1 Wharton, Criminal Law (12 th ed. 1932), § 395, 397, pp. 546-567.
The general rule has been stated to be that when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned and has pleaded and the jury has been impaneled and sworn, he is in jeopardy. 22 C.J.S., Criminal Law, § 241, p. 375; 15 Am. Jur., Criminal Law, § 369, p. 46; State v. Midgeley, 28 N.J. Super. 491 (App. Div. 1953), reversed on other grounds, 15 N.J. 574 (1954).
There seems to be abundant authority that if the jury is discharged without the accused's consent for a reason legally insufficient and without an absolute necessity for it, the discharge is as a matter of law an acquittal. See People ex rel. Stabile v. Warden of City Prison, 202 N.Y. 138, 95 N.E. 729 (Ct. App. 1911); People ex rel. Brinkman v. Barr, 248 N.Y. 126, 161 N.E. 444 (Ct. App. 1928); Cornero v. U.S., 48 F.2d 69, 74 A.L.R. 797 (9 Cir., 1931); State ex rel. Dato v. Himes, 134 Fla. 675, 184 So. 244 (Sup. Ct. 1938); Ex parte Rockwood, 146 Kan. 386, 69 P. 2 d 703 (Sup. Ct. 1937); Armentrout v. State, 214 Ind. 273, 15 N.E. 2 d 363 (Sup. Ct. 1938); Commonwealth v. Gray, 249 Ky. 36, 60 S.W. 2 d 133 (Ct. App. 1933).
In People ex rel. Stabile v. Warden of City Prison, supra [202 N.Y. 138, 95 N.E. 733], the court said:
"If a person accused of crime is placed upon trial therefor upon an indictment duly found and sufficient in form, and he pleads thereto and proceeds with the trial before a jury duly sworn to try the issues so joined, he is placed in jeopardy within the constitutional provisions."
Under the interpretation so given, there is no need for a conviction or acquittal on the merits. Such a contention was there disposed of by the court in these words:
"Although the discharge of the jury was not in form an acquittal of the defendant, it was ...