For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[30 NJ Page 110] Defendant was indicted for murder by the Essex County grand jury. The indictment was framed in the short form which has been traditional in New Jersey for many years and which is authorized by the Rules of Criminal Practice. R.R. 3:4-3(b). See Graves v. State, 45 N.J.L. 203 (Sup. Ct. 1883), affirmed 45 N.J.L. 347 (E. & A. 1883). It simply charged that the accused "did willfully, feloniously and of his malice aforethought, kill and murder Salvador Touza, * * *." Williams was tried thereunder for first degree murder. At the conclusion of the trial, the court submitted to the jury for determination the following issues: (1) first degree murder, (2) first degree murder with a recommendation of life imprisonment, (3) second degree murder, (4) manslaughter. And, of course, an instruction with respect to a verdict of not guilty
was given also. After deliberation, a verdict of "guilty of murder in the second degree" was returned.
On appeal, this court reversed the conviction of second degree murder for trial errors and remanded the cause for a new trial. 29 N.J. 27 (1959). Thereafter, defendant moved for admission to bail, primarily upon the ground that by reason of the jury verdict he had been acquitted of first degree murder and on retrial could not be found guilty of more than second degree murder. Accordingly, he contended that his case no longer involves a capital offense and so he is entitled to bail in the interim under Article I, paragraph 11, of the New Jersey Constitution of 1947, which provides:
"All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great."
This mandate has been incorporated verbatim into R.R. 3:9-1(a) of the Rules of Criminal Practice. The motion was denied because "the offense with which defendant is charged is murder." We granted leave to appeal.
Defendant's position is that to put him to trial again on the charge of first degree murder would be to subject him to double jeopardy. The State answers: (a) that he was not acquitted of first degree murder, and (b) that by appealing from the second degree conviction and obtaining a judgment of reversal, he waived absolutely any jeopardy claim. More particularly, it is contended that the crime of murder is a single offense in New Jersey which is divided into degrees only for purposes of punishment. And thus, says the State, the conviction of second degree murder means in the present context that defendant was found guilty of the unitary offense of murder, which finding was expunged on appeal, leaving the record barren of any support for the bar of autrefois acquit or former jeopardy.
The precise problem presented has not been dealt with directly in any appellate tribunal of this State. In 1911
it was held in the Essex County Court of Oyer and Terminer that a defendant who, by his own act of appeal, secures a reversal of a second degree murder conviction, "stands in the same position as though he had never been tried upon the indictment," and consequently is liable to further prosecution for first degree murder. State v. Leo, 34 N.J. Law J. 340 (O. & T. 1911). No appeal was taken. Dictum lending support for that view may be found in State v. O'Leary, 110 N.J.L. 36 (E. & A. 1933), and State v. King, 106 N.J.L. 338 (E. & A. 1930).
Many of our sister states have expressed themselves on the question. And, as the footnote to Mr. Justice Frankfurter's dissent in Green v. United States, 355 U.S. 184, 216, 78 S. Ct. 221, 2 L. Ed. 2 d 199 (1957) (to be discussed infra), indicates, they are almost evenly divided as to the proper principle to be applied. Of the 36 states involved, 19 permit retrial for the greater offense following a successful appeal from conviction of a lesser included offense (New Jersey is placed in this group on the trial court precedent of State v. Leo, supra); 17 do not. It may be noted also that of the 19 states referred to, 13 of them allow retrial of the greater offense because of a specifically controlling or influential constitutional or statutory provision. Some of the statutes say (as in Oklahoma, for example) that "[a] new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had, * * * and the former verdict cannot * * * be pleaded in bar of any conviction which might have been had under the indictment or information." Comp. St. 1921, § 2753. Others of them (as in New York) simply provide that "the granting of a new trial places the parties in the same position as if no trial had been had," and that "when a new trial is ordered, it shall proceed in all respects as if no trial had been had." Code Cr. Prac., §§ 464, 544. See footnotes to Annotation, "Conviction of Lesser Offense as Bar," 61 A.L.R. 2 d 1141, 1189-1196
(1958). In connection with the 17 states which regard retrial of the higher offense as violative of the safeguard against double jeopardy, Justice Frankfurter's dissent in Green, supra, points out that in two of the states, Virginia and Texas, the result is based to some extent upon statutes prohibiting such retrial, and in New Mexico on a constitutional provision to the same effect. 355 U.S., at page 219, 78 S. Ct. at page 240.
Since our Supreme Court has not expressed itself in this important field, we are free to adopt the rule which, compatibly with the common law, pertinent statutes and the 1947 Constitution, best serves the rights and liberties of the people of New Jersey. Article I, paragraph 11, of our Constitution bars double jeopardy in this wise:
"No person shall, after acquittal, be tried for the same offense."
Long before that great safeguard of individual freedom first appeared in any New Jersey constitution, it was firmly imbedded in the common law of this State, The State v. Cooper, 13 N.J.L. 361 (Sup. Ct. 1833); State v. Mowser, 92 N.J.L. 474, 485 (E. & A. 1919), and of England, where it was regarded as a universal maxim. Chase's Blackstone (3 d Ed. 1890), 1019. The reason for its subsequent inclusion in our Constitution was to cloak it in all the dignity of an organic right and to declare as fundamental that after acquittal no person shall be brought into jeopardy of his life or liberty again for the same offense. Attention is drawn inevitably to the fact that Article I mentions acquittal only and does not speak of conviction. As Justice Jacobs noted recently in State v. Roller, 29 N.J. 339, 344 (1959), the particular "phraseology was used to insure against the contention that a defendant may be entitled to immunity from further trial where his first trial ends, not in acquittal, but in a jury disagreement or comparable indecisive disposition." As has been indicated, the commonlaw bar against a second trial or punishment after conviction
was well known and recognized before (Cooper, supra, 1833) and after (Mowser, supra, 1919) the 1844 Convention, and subsequent to that of 1947 as well. (State v. Labato, 7 N.J. 137, 143 (1951)). And, of course, this common-law doctrine of autrefois convict persists in full vigor to this day.
The significance of the term "same offense" is not limited to the same offense as an entity and designated as such by legal name, but it comprehends also any integral part of such offense which may subject the offender to indictment and punishment. State v. Mowser, supra, at page 483 of 92 N.J.L. Where a lesser offense is a necessary ingredient or component part of the principal or greater offense and grows out of the same transaction, conviction or acquittal of the lesser bars further prosecution for the greater crime. The State v. Cooper, supra, 13 N.J.L. at page 372; State v. Greely, 11 N.J. 485 (1953); and see R.R. 3:7-9(c). The circumstances of the present case (as detailed in the earlier opinion to which reference has been made) leave no doubt that second degree murder was an integral part of the first degree murder charged against defendant by the State. The "facts that constituted murder in the second degree were all necessary parts and constituents of murder in the first degree, and the conviction of the lesser crime under the charge of the higher crime which embraced it was, upon well-known principles, entirely normal." Graves v. State, supra, 45 N.J.L. at page 206.
This brings us to the more difficult and more controversial question of whether defendant was acquitted of first degree murder by the verdict which convicted him of second degree murder.
The indictment against Williams was sufficient to warrant charges of first degree murder, second degree murder and manslaughter. But the greater offense included its lesser components and so conviction could have been had of the highest offense charged or of any lower ...