For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
The defendant was convicted of bookmaking, N.J.S. 2A:112-3, by a jury in the Essex County Court. His appeal was certified on our own motion while pending unheard in the Appellate Division. Three principal grounds are urged for reversal: first, because of an abortive prior trial, the further prosecution in which he was convicted was barred under principles of double jeopardy; second, articles were introduced in evidence which were obtained by an unlawful search and seizure; and third, the State did not make out a prima facie case of bookmaking.
The claim of double jeopardy is based on the State's refusal to continue the first trial with 11 jurors after the twelfth was necessarily removed from further participation during the course of the case. Our criminal practice rules provide, R.R. 3:7-1(b): "Juries shall be of 12 persons but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12, except in murder cases."
The situation developed in this fashion. On the selection of the jury at the opening of the first trial, each juror was asked whether he knew defendant and none acknowledged any acquaintance. The opening statements of counsel and the complete testimony of the first two witnesses for the prosecution occupied the balance of the day. When the judge recessed for the day, he instructed the jury not to speak to anyone
concerning the case. The next morning, before the trial resumed, one of the jurors advised the judge privately that he had asked his wife and his brother-in-law the preceding evening whether he knew defendant. The inquiry disclosed that, while the juror was not personally acquainted with defendant, the brother-in-law was and all three were members of a local social organization. The juror was then examined on supplemental voir dire by the judge and both counsel out of the presence of the balance of the jury. It was clear therefrom not only that the juror had disobeyed the court's admonition against talking about the case, but, more important, that he could not fairly sit on the case as an impartial juror because of what he had learned the previous night. It is also evident that the situation was not brought about by any conduct of either the State or the defense, and there has been no explicit claim that the remainder of the jurymen might have been contaminated by the examined juror's bias.
The prosecutor then suggested that the judge declare a mistrial on his own motion. (As we view it, it would make no difference, under the circumstances, had the State actually made the motion.) The court responded that he found it necessary to excuse the juror from further service in the case and consequently felt "an absolute necessity" to declare a mistrial. He expressed the hope, however, that the prosecution would continue the trial with 11 jurors (no alternate jurors had been impaneled pursuant to R.R. 3:7-2(d)), to which defendant was agreeable. The State declined to consent, relying on R.R. 3:7-1(b), but assigned no reason for its refusal.*fn1
The defendant did not quarrel with the discharge of the juror, but objected to the declaration of a mistrial when he and the court were willing to proceed with the remaining jurors. The judge denied his application for continuing the trial without the State's consent and terminated the trial.
Before the case was set for retrial defendant moved, pursuant to the requirement of R.R. 3:5-5(b)(2), State v. Currie, 41 N.J. 531, 535 (1964), for the entry of a judgment of acquittal. He claimed, as he does here, that the State may not refuse to continue a trial with less than 12 jurors except for "a legally sufficient reason," that no such reason was present and that consequently the mistrial was equivalent to an acquittal and another trial would subject him to double jeopardy. The court denied the motion holding that the State is entitled to withhold its consent under R.R. 3:7-1(b) as it sees fit, without effect upon the right to retry a defendant. 74 N.J. Super. 520 (Cty. Ct. 1962), commented on in 17 Rutgers L. Rev. 218 (1962).
The law in this State is thoroughly established that, while the principles of double jeopardy may be applicable to bar a second trial where the first has been terminated short of verdict, yet "* * * if the trial was terminated or the jury discharged before verdict because of incapacitating illness of the judge or a juror or jurors or of the defendant, or misconduct or disqualification of some members of the jury, or on account of an untoward incident that renders a verdict impossible, or some undesigned matter of absolute necessity, or the failure of the jury to agree upon a verdict after a reasonable time for deliberation has been allowed, subsequent prosecution for the offense [is] not barred," for reasons of justice and the public interest. State v. Williams, 30 N.J. 105, 121 (1959); State v. Locklear, 16 N.J. 232 (1954); State v. Preto, 51 N.J. Super. 175 (Law Div. 1958); State v. Block, 119 N.J.L. 277 (Sup. Ct. 1938), affirmed 121 N.J.L. 73 (E. & A. 1938); State v. Van Ness, 82 N.J.L. 181 (Sup. Ct. 1912), affirmed o.b. 83 N.J.L. 801 (E. & A. 1912); State v. Hall, 9 N.J.L. 256 (Sup. Ct. 1827). While we insist
that the abortive termination be for a "sufficient legal reason" and "an absolute or an overriding necessity," State v. Locklear, supra (16 N.J., at p. 243), and carefully review the trial court's action to be certain that these requirements are fairly met, State v. Locklear, supra, State v. Preto, supra, there has never been any doubt that these criteria are met and another trial is not barred where the mistrial is occasioned by the necessary disqualification of a juror for bias. The defendant concedes this to be so and further agrees that the trial court here acted entirely properly in excusing the juror in question.
Perhaps it should be mentioned that the law of New Jersey concerning the effect of trial termination before verdict is at least as stringent in a defendant's favor as that of the federal courts acting under the Fifth Amendment. See 9 Rutgers L. Rev. 581, 584 (1955), commenting upon Locklear; Note, "Double Jeopardy: The Reprosecution Problem," 77 Harv. L. Rev. 1272 (1964); and Annotation, "Double jeopardy after declaration of mistrial or discharge of jury in federal court," 6 L. Ed. 2 d 1510 (1962). So if the Fifth Amendment is in this respect applicable to the states by virtue of the Fourteenth Amendment, cf. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2 d 653 (1964), our decisions would be in line with federal law. (And our requirements certainly go beyond those imposed by the concept of due process under the Fourteenth Amendment alone. See e.g., Brock v. North Carolina, 344 U.S. 424, 73 S. Ct. 349, 97 L. Ed. 456 (1953).)
Indeed the criteria just referred to as announced in Locklear, supra (16 N.J. 232), were expressly based upon the principles laid down by Mr. Justice Story in the leading case of United States v. Perez, 9 Wheat. 579, 580, 6 L. Ed. 165 (1824):
"We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to
exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely ...