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 Jacobs, J.
The defendant appealed to the Appellate Division from the dismissal of his appeal to the Morris County Court. We certified the matter on our own motion. See R.R. 1:10-1(a).
Patrolman Mericle of the Dover police force filed a complaint in the Municipal Court of Dover charging the defendant Mull with uttering loud and indecent language in a public street in violation of the Disorderly Persons Law (N.J.S. 2 A:170-29). The defendant entered a plea of non vult, and the ensuing formal judgment, after setting forth that the defendant was informed of his constitutional rights and was afforded an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment, adjudged the defendant to be guilty and sentenced him to the county jail for 90 days. The defendant appealed to the Morris County Court and the State moved to dismiss his appeal in view of his non vult plea in the municipal court. The appeal was dismissed and notice of appeal to the Appellate Division from the judgment of dismissal was filed by the defendant. In support of his appeal he urges that under N.J.S. 2 A:3-6 and R.R. 3:10-10 he was, notwithstanding his plea of non vult, entitled to prosecute his appeal to the Morris County Court and to be heard there de novo on the issue of guilt as well as on the punishment in the event of a new finding of guilt.
The defendant's plea of non vult was an implied confession of the offense and was equivalent to a guilty plea insofar as the judgment of conviction in the proceeding before the municipal court was concerned. See State v. Pometti, 12 N.J. 446, 452 (1953); Waters v. Court of Special Sessions of Essex County, 132 N.J.L. 44, 47 (Sup. Ct. 1944). There is nothing before us indicating that the plea was not made voluntarily and with full understanding of the nature of the charge (R.R. 8:4-3; R.R. 3:5-2), or that the defendant ever sought leave from the municipal court to withdraw his plea. See State v. Nicastro, 41 N.J. Super. 484,
486 (Ct. Ct. 1956); R.R. 8:4-3; R.R. 3:7-10(a). The defendant's position is that even though the plea, which may for present purposes be deemed equivalent to a guilty plea, was made voluntarily and with full understanding of the charge, and was never sought to be withdrawn in the municipal court, it had no binding effect whatever on his appeal to the County Court under N.J.S. 2 A:3-6 and R.R. 3:10-10. But the cited statute and court rule admittedly contain no specific language which deals with the matter, and the judicial determinations which have been rendered to date are admittedly not at all dispositive. Thus, in State v. Meinken, 10 N.J. 348, 354 (1952), an appeal was taken to the Middlesex County Court from the defendant's conviction upon his plea of guilt in the Municipal Court of South Brunswick Township; since the parties did not raise any question as to the appealability of the conviction, this court did not pass on it but did significantly close its opinion with the following pointed query:
"Would the fact that the defendant pleaded guilty in the municipal court require or justify a dismissal of his appeal? In this regard, see State v. Webber, 76 N.J.L. 199 (Sup. Ct. 1908); State v. Heyer, 89 N.J.L. 187 (E. & A. 1916); State ex rel. Borough of South Belmar v. Whittington, 4 N.J. Misc. 590 (Sup. Ct. 1926); 2 Am. Jur., Appeal and Error, § 230, p. 987."
In State v. Nicastro, supra, and State v. Schrier, 51 N.J. Super. 81 (1958), modified, 30 N.J. 241 (1959), the Essex County Court recently took the position that de novo review of the issue of guilt is impermissible where the conviction in the municipal court is based on a plea of guilt or non vult, and that an appeal to the County Court seeking such review is dismissible.
Elsewhere in the country the matter has been dealt with in varying fashions. See Annotation, "Plea of guilty in justice of the peace or similar inferior court as precluding appeal " 42 A.L.R. 2 d 995 (1955). In some states the local statutory provisions have been construed as authorizing a de novo review on appeal notwithstanding the guilty plea below.
See, e.g., Dickerson v. Commonwealth, 162 Va. 787, 173 S.E. 543 (1934), where a divided Virginia Supreme Court overruled its earlier contrary holding in Cooper v. Town of Appalachia, 145 Va. 861, 134 S.E. 591 (1926). In other states an appeal from the conviction resting on the plea of guilt has been held precluded by local statutory provisions or common-law principles of waiver and estoppel. See, e.g., People v. Brown, 87 Colo. 261, 286 P. 859 (Sup. Ct. 1930), and State v. Eckert, 123 Wash. 403, 212 P. 551, 552 (1923) where the Washington Supreme Court suggested that it would be "trifling with the courses of the law" to allow a defendant, who has confessed his guilt, to appeal from the conviction based on his plea. In still other states an appeal from the conviction based on the guilty plea is allowed but the full force of the guilty plea is wisely vindicated by confining the appeal to an attack on the sentence. See, e.g., State v. Funderburk, 130 S.C. 352, 126 S.E. 140 (Sup. Ct. 1925), and Smith v. State, 237 Ind. 244, 143 N.E. 2 d 408, 410 (1957) where the Supreme Court of Indiana noted that the plea of guilt in the municipal court "is tantamount to a confession of judgment of guilt and there is nothing from which an appeal may be taken except the measure of the punishment to be meted out." Cf. Hardy v. State, 35 Okl. Cr. 75, 248 P. 846 (Crim. Ct. App. 1926), where the court pointed out that since the conviction entered on a plea of guilt "is in effect a judgment by confession, no question as to the sufficiency of the evidence or the guilt of the defendant can ordinarily be raised."
In Burris v. Davis, 46 Ariz. 127, 46 P. 2 d 1084 (1935), the defendant entered a plea of guilt to the charge of driving while intoxicated and was thereupon convicted and sentenced by the justice of the peace to a term in jail. He sought to appeal and the question as to whether he had the right to do so came before the Supreme Court of Arizona. In holding that he was entitled to have his conviction reviewed on appeal, the court ...