For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J.
Appeal is taken from a judgment of conviction of second-degree murder. The trial was the third on the same indictment for murder.
At the first trial defendant was found guilty of first-degree murder with a recommendation. The judgment of conviction was reversed on appeal. State v. Wolak, 26 N.J. 464 (1958). The second trial resulted in a mistrial. Previous to and during the third trial defendant made several motions for dismissal of the indictment on the ground that the third trial would place him in double jeopardy contrary to Art. 1, par. 11, Constitution of 1947 which states: "No person shall, after acquittal, be tried for the same offense." The action of the court in denying these motions is the sole ground of appeal.
During the course of the second trial the prosecutor asked two witnesses to take a gun (admittedly used in the killing) and to point it at him just as the defendant had allegedly done in killing the victim. Thereafter, the prosecutor called to the stand the victim's widow and directed her "to hold [the gun] in your hand and stand up like [defendant] did and point the gun at anyone here as if he was your husband and name the one you're pointing to to show the aim." The witness stated, "That way [indicating with the gun]." The prosecutor then asked her at whom she was pointing and her reply was "Wolak [defendant] that --."
Immediately, defense counsel moved for a mistrial contending that the prosecutor's directive to the widow was a deliberate attempt on the part of the State to inflame the minds of the jury because the prosecutor knew that she would point it at defendant. The State opposed the motion. The trial court denied the motion, strongly criticized the prosecutor, and instructed the jury to disregard the entire incident.
Three days later the trial court, in the absence of the jury, informed counsel that it had decided to reconsider defendant's motion for mistrial. It recited the history of the incident, emphasized the prosecutor's poor judgment, and stated that it is the responsibility of courts to insure the defendant of a fair and impartial trial free from acts and declarations which prejudice the jury in its determination of the innocence or guilt of the defendant. It continued that, upon reconsideration, it was satisfied that the demonstration by the victim's widow was prejudicial and would remain so in the minds of the jury throughout the trial and during their deliberations, regardless of the court's instructions.
The court, therefore, ruled that it "must grant the motion made on behalf of the defendant for a mistrial." No objection to the reconsideration of the motion for a mistrial or to the court's determination in reversing itself was expressed by either of defendant's experienced counsel or by the prosecutor.
Defendant argues that the trial court's discharge of the jury at the second trial before verdict was reached constituted an acquittal unless there was absolute necessity for the discharge or unless defendant consented; that no necessity and no consent here existed and, therefore, defendant's motions should have been granted.
As we view the cause, we find it unnecessary to meet the issue of necessity as we affirm on the alternative theory that the mistrial resulted from defendant's motion which, at the least, amounted to consent.
A plea of former jeopardy will not prevail where the jury was discharged on defendant's motion. State v. Reidler, 5 N.J. Misc. 347, 351 (Sup. Ct. 1927); United States v.
Harriman, 130 F. Supp. 198, 204 (D.C.S.D.N.Y. 1955); McLendon v. State, 74 So. 2 d 656, 657 (Fla. Sup. Ct. 1954); People v. Dodson, 107 N.Y.S. 2 d 7, 10 (Sup. Ct. 1951); DeYoung v. State, 160 Tex. Cr. R. ...