Gaulkin, J.s.c. (temporarily assigned).
Defendant Schrier pleaded non vult in the Municipal Court of Newark to the following complaint:
"Det. Theodore Howard residing at Police Hdqts. upon his oath, says: that William J. Schrier, defendant, on the 24th day of October 1957, in the City of Newark, County of Essex and State of New Jersey, did unlawfully sell a Hypodermic Needle to one Detective Carter Saunders to wit: at 756 Broadway
In violation of N.J.S. 2 A:170-77.3."
Schrier was represented by competent retained counsel. He was sentenced to 90 days in jail, execution of which was suspended, and fined $1,000. He then retained present counsel, who made application to withdraw the plea of non vult , which was denied. Defendant then filed separate notices of appeal from the judgment below, and from the refusal to permit the withdrawal of the plea. The State now moves to dismiss the appeal from the judgment below, on the ground that no appeal lies from a judgment of conviction based upon a plea of non vult.
Defendant contends that even after a plea of non vult in the municipal court a defendant is entitled not only to appeal to the County Court, but to a trial de novo in that court, under N.J.S. 2 A:3-6 and R.R. 3:10-10. Defendant's argument may be summarized as follows: the cited
statute provides for review of "any judgment," not merely those judgments which follow pleas of not guilty, and such appeals were taken in State v. Meinken , 10 N.J. 348 (1952); Plainfield v. Phillips , 38 N.J. Super. 260 (App. Div. 1955); and State v. Baumgartner , 21 N.J. Super. 348 (App. Div. 1952). The State, on the other hand, contends that State v. Nicastro , 41 N.J. Super. 484 (Cty. Ct. 1956), squarely holds that no appeal will lie after a plea of non vult or guilty.
Each side also cites cases from other jurisdictions. See, also, Annotation, "Plea of guilty in justice of the peace or similar inferior court as precluding appeal ," 42 A.L.R. 2 d 995; 22 C.J.S. Criminal Law § 390, pp. 573-574. Many of these cases contain interesting discussions, particularly of the considerations of policy which led the courts to one conclusion or the other, but since they deal with their own statutes and practices, their application to our statutes and rules is illuminating rather than compelling.
The New Jersey cases cited by the defendant do not settle the matter. As the State points out, in the Meinken, Phillips and Baumgartner cases the State did not challenge defendant's right to appeal. Furthermore, it appears that the Baumgartner case came up under R.S. 39:5-11 which, in 1952, provided for appeal from "the judgment or sentence," by trial de novo , in motor vehicle cases. And the appeal in Plainfield v. Phillips, supra , after the plea of guilty to a municipal ordinance, may have been permitted by Plainfield's peculiar charter. Cf. Watson v. Plainfield , 60 N.J.L. 260 (Sup. Ct. 1897).
In the Nicastro case Judge Waugh said (41 N.J. Super. , at page 486):
"The State moved to dismiss the three appeals on the ground that because the defendants had pleaded guilty to the charges, they could not appeal, and on the ground that the sentences, being within the statutory limits, were within the discretion of the trial judge. In re Lewis , 11 N.J. 217 (1953); State v. Newman , 128 N.J.L. 82 (Sup. Ct. 1942). The right to appeal after a guilty plea is ...