For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The defendant Alonzo Walker appeals from a judgment of conviction of murder in the first degree with a recommendation of life imprisonment.
The State's case consisted primarily of two statements signed by the defendant and the testimony of Mary Brooks, an eyewitness to the homicide. According to defendant's statements, the following occurred: The deceased, Mary Johnson, and the defendant lived together in Philadelphia. On Friday, September 7, 1956, they had a fight; and the following day, Mary Johnson went to the home of a friend, Mary Brooks, at 30 Eagle Street, Bridgeton, New Jersey. On Sunday, September 9, 1956, the defendant went to Bridgeton with his son, Alonzo Walker, Jr., for the purpose of persuading Mary Johnson to return to Philadelphia. When he arrived at the Brooks' house, he found that, in addition to Mary Johnson, Lonnie and Mary Williams and their daughter, Rosella, were also there. Defendant repeatedly beseeched Mary Johnson to return to Philadelphia, but she refused. At one point he left the house and bought a skirt and blouse for her. When he returned, he brought with him a loaded revolver which he had in his car. He said that he took the revolver with him because Mary Johnson
had asked him to get rid of it and he wanted to show his good intentions by offering it to her so that she could dispose of it. However, he wanted her to promise to return with him to Philadelphia before he would give up the gun. Immediately prior to the shooting, they were conversing in the kitchen of the house. The defendant stated that Mary Johnson was seated at the kitchen table and he was seated opposite her. While they were talking, he took out the revolver. When she again refused to return to Philadelphia, he "reared back in the chair and said 'you gotta go' and the gun went off." He ran out of the house and dropped the gun in one of the yards in the neighborhood.
Mary Brooks testified that at the time of the shooting she and her grandchildren were in the kitchen; that the defendant was standing on the opposite side of the table where Mary Johnson was seated; and that she, Mary Brooks, was standing next to the defendant. She saw his arm rise to a horizontal position and, thinking he held a knife, exclaimed, "Oh, don't cut this woman in my home." She then heard a shot and pushed the defendant. He pushed her in return and ran out of the house.
The defendant was apprehended later that night by the Bridgeton police on a road at the outskirts of the city. The police officers testified that the defendant admitted the shooting immediately after his arrest; that he accompanied them that night in an unsuccessful search for the weapon; and that at police headquarters he signed a statement relating the circumstances of the homicide. The officers further testified that the gun was found the next day and that the defendant then signed another statement admitting that it was the gun he used to shoot Mary Johnson. Medical and ballistics experts testified that Mary Johnson died from the effects of a bullet emitted from defendant's gun.
The defendant did not take the stand. His case consisted primarily of the testimony of two private investigators who said they each had a conversation with Mary Brooks some time subsequent to the homicide and she told
them that when she saw the defendant raise his arm, she pushed him and then the gun was fired. One of the statements, signed by her, was admitted in evidence. Mary Brooks denied on the stand that she ever said she pushed the defendant before the gun was fired.
Defendant urges a number of reasons for reversal of the judgment below. We are reversing on the ground that the trial court erroneously instructed the jury on the law relative to reasonable doubt. It is therefore unnecessary for us to discuss all of the defendant's arguments. We shall, however, discuss those points which will probably arise on the retrial and others concerning procedures engaged in at the trial which we regard as improper.
The defendant originally pleaded not guilty, but later changed his plea to non vult. After a pre-sentence investigation, the Cumberland County Court sentenced defendant to a term of 25 to 30 years imprisonment. Thereafter, he applied for a writ of habeas corpus on the ground that he did not understand the nature of his plea. The County Court denied defendant's application. On appeal, the Appellate Division, treating the application as one to withdraw a plea under R.R. 3:7-10(a) and finding there was grave doubt as to defendant's having clearly understood the meaning of his plea, reversed so that he could enter a plea of not guilty and stand trial. The defendant was then tried before a jury and, as mentioned above, was found guilty of first degree murder with a recommendation of life imprisonment.
Defendant urges reversal of the judgment below on the ground that the prosecution on the first degree murder charge placed him twice in jeopardy for the same offense. He relies on State v. Williams, 30 N.J. 105 (1959). In that case we held that where a defendant is tried before a jury on a short-form murder indictment and found guilty of second degree murder and thereafter obtains a reversal, he cannot be retried for first degree murder. The rationale is that by returning a verdict of second degree murder the
jury, by necessary implication, acquits the defendant of first degree murder. His appeal from the conviction of second degree murder cannot constitutionally be interpreted as a waiver of jeopardy as to the first degree acquittal. State v. Williams, supra, 30 N.J., at pp. 122 to 124. By analogy, the defendant in the present case argues that acceptance of his non vult plea amounted to a conviction of second degree murder and an implied acquittal of first degree murder.
N.J.S. 2 A:113-3, which applies to acceptance of non vult pleas to murder indictments, provides:
"In no case shall the plea of guilty be received upon any indictment for murder, and if, upon arraignment, such plea is offered, it shall be disregarded, and the plea of not guilty entered, and a jury, duly impanelled, shall try the case.
Nothing herein contained shall prevent the accused from pleading non vult or nolo contendere to the indictment; the sentence to be imposed, if such plea be accepted, shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree."
A defendant does not plead non vult to any particular degree of murder. He pleads to the general indictment. Since under the statute the court has the discretion to impose a life sentence or the sentence provided for second degree murder, acceptance of a plea without more cannot constitute ...