For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
[46 NJ Page 302] Defendant Wolf was convicted of murder in the first degree with a jury recommendation of life imprisonment. On appeal this Court reversed the judgment for trial errors and remanded the case for retrial. State v. Wolf, 44 N.J. 176 (1965). Thereafter at a pretrial conference the County Court ruled that by reason of the verdict at the first trial the State was barred from seeking the death penalty again at the new trial. The precise issue never having been
passed upon by the Supreme Court, we granted the Prosecutor's application for leave to appeal.
Defendant points out that at the original trial the jury was instructed to bring in one of three possible verdicts: (1) guilty of murder in the first degree, which would result in the mandatory imposition of the death penalty, (2) guilty of murder in the first degree with a recommendation of life imprisonment "in which case this and no greater punishment [can] be imposed." N.J.S. 2A:113-4, or (3) not guilty. The jury found Wolf guilty of first degree murder. Because they recommended life imprisonment defendant asserts that, by implication, they acquitted him of that kind of first degree murder which warrants the death penalty. Therefore, he contends the double jeopardy clauses of both Federal and State Constitutions give him complete immunity against further exposure to any punishment greater than life imprisonment. The Fifth Amendment of the United States Constitution says that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb * * *." Article I, paragraph 11 of the New Jersey 1947 Constitution specifies that, "No person shall, after acquittal, be tried for the same offense." Although the language of the former seems to be broader in scope than the latter, actually in operation their boundaries are co-extensive. State v. Williams, 30 N.J. 105, 122 (1959).
It has long been the law of this State that where a lesser offense is a necessary ingredient or component part of the principal or greater offense and emanates from the same transaction, then conviction or acquittal of the lesser bars further prosecution for the greater crime. State v. Dixon, 40 N.J. 180 (1963); State v. Williams, supra; State v. Mark, 23 N.J. 162 (1957); State v. Labato, 7 N.J. 137 (1951). Moreover, this Court has held that conviction of a lesser degree of a crime which is divided into degrees amounted to an acquittal of guilt of the higher degree, and that after reversal of the conviction for the lesser degree the accused cannot be retried for the higher degree. State v. Williams, supra.
In Williams defendant was indicted and tried for murder. At the close of the case a verdict of guilt of either first or second degree murder was possible. The trial court so advised the jury which found him guilty of murder in the second degree. We declared, following the view taken by the United States Supreme Court in Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2 d 199 (1957), that by irresistible implication such verdict signified an acquittal of first degree murder and brought into play the bar of the double jeopardy clause of the New Jersey Constitution so as to prevent the State from reprosecuting the defendant for first degree murder. We also held that the implied acquittal of the higher offense cloaked him with a constitutional immunity which was not waived by the successful appeal from the second degree murder conviction. Basically the reason for the conclusion was that the defendant had not appealed from the acquittal but only from the conviction for the lower offense. Thus having appealed from the only offense of which he had been found guilty, the reversal expunged only that conviction and the record stood as if he had never been in jeopardy for that offense. Consequently he was left subject to reprosecution only for that expunged offense, i.e., second degree murder.
Here the defendant accepts the fact that he was convicted of first degree murder. But he maintains there are two types of offenses known as first degree murder. One is the type which in the judgment of the jury upon a consideration of all the evidence warrants the death penalty. The other is of a less atrocious or shocking nature and which in the judgment of the jury after a consideration of all the evidence warrants life imprisonment rather than death. Thus he contends that by the verdict in the first trial he was acquitted of the more heinous type of first degree murder, and to retry him for that offense would be to put him in jeopardy again for the "same" offense within the meaning of the constitutional proscription.
Some support for defendant's position is to be found in People v. Henderson, 60 Cal. 2 d 482, 35 Cal. Rptr. 77, 386 P.
2 d 677 (Sup. Ct. 1963). There the defendant was charged with first degree murder. A California statutory provision is made for a bifurcated trial in such cases; the first phase or trial decides the issue of guilt or innocence, in effect, a separate proceeding; the second determines the punishment, if guilt has been found or if a plea of guilty has been entered. In Henderson the defendant waived jury trial and pleaded guilty to murder. Then after the punishment hearing at which the defendant was subject to the death penalty, the court found the murder to be first degree, but imposed a sentence of life imprisonment. On appeal the judgment and sentence were reversed for error in the proceeding and a new trial ordered.
The retrial, again on the issue of punishment, was conducted before a jury, and over defendant's objection the State was allowed to seek the death penalty. A verdict of death was returned by the jury and defendant appealed. The Supreme Court reversed the judgment holding that the substantially identical double jeopardy clauses of the California and United States Constitutions, as construed in Green v. United States, supra, barred the death penalty as an issue in the reprosecution of Henderson. It considered that a distinction could not be made constitutionally between (1) a case where a defendant after obtaining a reversal of his conviction for an offense of a lower degree, i.e. second degree murder, is held immune from further prosecution for a crime of a higher degree, i.e. first degree murder, and (2) a case where a jury in a separate proceeding to fix punishment for a defendant whose guilt of first degree murder has been established by trial or on hearing after plea, decides upon the lesser of two alternative punishments, and that determination is reversed on appeal. It found both instances to be within the contours of the double jeopardy ...