For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
The defendant Bland Williams was convicted of murder in the first degree with a recommendation of life imprisonment. He appeals to this court as of right under R.R. 1:2-1(c).
On the night of July 19-20, 1956 the Koppers Coke Company's office building in Port Reading, Middlesex County, was broken into, its safe was removed and forced open, and its relief engineer, James Quackenbush, was brutally beaten to death. In January 1957 separate indictments were returned against Bland Williams, his brother Eugene Williams, William Butler, James Winbush and John Coleman, charging them with the murder of Quackenbush. The indictments were in the authorized short form and charged murder generally. Winbush was hospitalized for mental illness and has never stood trial. Bland Williams, Eugene Williams and Butler were tried together in 1957, and Coleman (who was later sentenced to the Bordentown Reformatory on his plea of non vult) was the State's principal witness. Coleman testified that he witnessed the killing of Quackenbush by Butler during the course of the Koppers Company robbery in which he (Coleman) and all the others participated.
Butler and the Williams brothers were convicted of murder in the first degree and sentenced to death. On appeal, this court reversed because of error by the trial judge and remanded the matter for a new trial. See State v. Butler, 27 N.J. 560 (1958). Accordingly, in 1959, Butler and the Williams brothers were again brought to trial and Coleman was once more the State's principal witness. After about a month of trial, a motion for mistrial was made because of an alleged violation of jury sequestration. While the trial court was considering the motion, counsel for Bland Williams and Eugene Williams informed the court that their clients wished to withdraw their not guilty pleas and enter pleas of non vult to second degree murder. The court accepted the new pleas and later sentenced each of them to 10 to 15 years imprisonment. After the acceptance of the Williams brothers' pleas, a mistrial was declared as to Butler. He was later retried alone, with Coleman again testifying for the State, and was convicted of murder in the first degree and sentenced to death. This court affirmed the conviction. State v. Butler, 32 N.J. 166 (1960). Butler's sentence was commuted by Governor Meyner to life imprisonment.
Sometime later, Bland Williams moved to withdraw his plea of non vult to second degree murder on the ground that it was not voluntarily and understandingly made. Counsel was assigned to represent him and, after a hearing, the trial court granted the motion, reinstated his not guilty plea, and ordered him to stand trial on the original indictment. The assignment of counsel was extended for the purpose of trial.
Before the trial, Williams moved to vacate the indictment and to limit the verdict to second degree murder. He also moved for a change of venue. The motion to vacate and to limit the verdict was denied, but the motion for a change of venue was granted and the trial was moved to Essex County. After a lengthy trial, the jury rendered a verdict of guilty of murder in the first degree with a recommendation of life imprisonment. Present counsel was subsequently appointed to represent the defendant on this appeal, and this court granted
his motion to supplement the record with the transcript of a post-trial examination of the defendant by his present counsel, and with the appendices on appeal in State v. Butler, supra, 27 N.J. 560 (1958), and State v. Butler, supra, 32 N.J. 166 (1960).
As the defendant in his brief admits, the testimony against him in the present case was "in all essential respects the same as that extensively rehearsed by this Court in its opinions in 27 N.J. 560 (1958) and 32 N.J. 166 (1960)." Coleman supplied the sole material testimony connecting the defendant with the crime. Briefly, he testified that on the evening of July 19, 1956, he met Williams and his brother Eugene, along with Butler and Winbush, at the Little Cotton Club, a bar in Carteret; they entered a 1949 Buick automobile shortly before midnight, and the five of them drove from the Little Cotton Club to the Koppers plant; there, Coleman and Winbush were appointed lookouts by Butler, who was in charge, and Butler and the Williams brothers forced their way into the Koppers office building; when Quackenbush approached the building, Butler and the Williams brothers came out of the building and Butler beat Quackenbush with a large hammer handle until he lay still; thereafter, Butler and the Williams brothers dragged a safe out of the office building and unsuccessfully tried to force it open; Butler then blew up the safe with nitroglycerin which he had brought with him; immediately after the explosion, Coleman ran from the scene.
Williams denied any connection with the robbery and killing. He said that he had seen Coleman on occasion but did not "know" him. He further testified that on July 19, 1956, he never left the City of Perth Amboy; he spent the evening at a tavern there until about midnight, at which time he went directly to his room in Perth Amboy and slept through the night.
A more extensive discussion of the conflicts in the testimony would serve no purpose here. It is enough to say that there was sufficient testimony which, if believed by the jury,
established that Williams was guilty of murder in the first degree as charged by the State. See State v. Butler, supra, 32 N.J., at p. 176. We now address ourselves to the various legal points raised by the defendant in his brief on this appeal.
The defendant first contends that the court below erroneously denied his motion to vacate the indictment and to limit the trial verdict to murder in the second degree.
As mentioned above, after reversal by this court of his first conviction, 27 N.J. 560 (1958), Williams was again brought to trial. When the retrial had progressed about a month, Williams, through his counsel, sought the court's permission to withdraw his pleas of not guilty and to enter a plea of non vult to second degree murder. After the prosecutor stated that he had no objection to the change of plea, the court permitted the withdrawal of the plea of not guilty to murder in the first degree and accepted the plea of non vult to murder in the second degree. Three days later, Williams was sentenced to 10 to 15 years imprisonment. After he spent some time in prison, he successfully moved through newly assigned counsel to have his sentence vacated and the non vult plea withdrawn on the ground that it was not voluntarily and understandingly made. The trial court reinstated his plea of not guilty and ordered him to stand trial on the original, short-form indictment charging him with murder generally.
In his motion before the trial court to vacate the indictment and limit the jury's verdict to second degree murder, the defendant relied on the doctrine of autrefois acquit and argued that the court in the previous trial, by accepting his plea of non vult to second degree murder, impliedly acquitted him of first degree murder and thereby barred a subsequent trial for that offense. The trial court denied the motion and the defendant urges that this was error, citing State v. Williams, 30 N.J. 105 (1959), and Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2 d 199 (1957).
In Williams, 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 tried for first degree murder. We said that by returning a verdict of second degree murder, the jury, by necessary implication, acquits the defendant of first degree murder, id., at p. 119, and that his appeal from a conviction of second degree murder cannot constitutionally be interpreted as a waiver of jeopardy as to the first degree murder acquittal.*fn1 Id., at pp. 122-124.
In Green, the defendant was indicted for a felony murder arising out of the crime of arson. He was convicted of arson and second degree murder, won a reversal, and was again tried for murder in the first degree. The United States Supreme Court, in holding that the defendant could not again be tried for murder in the first degree, said:
"Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder. * * * In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: 'We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.'" 355 U.S. at pp. 190-191, 78 S. Ct., at p. 225, 2 L. Ed. 2 d at p. 206.
The defendant here argues that the trial court's acceptance of his plea of non vult to second degree murder is analogous to a jury's verdict of second degree murder, and contains an implied acquittal of first degree murder.
N.J.S. 2A:113-3, which permits the 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 impaneled, 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 ...