The opinion of the court was delivered by ’
This is an appeal under Art. VI, § V, par. 1(a) of the Constitution of 1947 from the Appellate Division’s reversal of the judgment of acquittal entered in the County Court. See City of Newark v. Martin, 22 N. J. Super. 32 (1952).
The defendant John W. Martin operated a parking lot at 341 Washington Street, Newark. On September 28,
In the well known case of
Kepner v. United States,
195
U. S.
100, 24
S. Ct.
797, 49
L. Ed.
114 (1904), the court divided on the issue of whether the common law prohibition against double jeopardy, embodied in the Fifth Amendment
In
Palko v. Connecticut, supra,
the Supreme Court held that a statute which permits appeal by the state in criminal proceedings does not violate the Eourteenth Amendment. Ho state constitutional provision against double jeopardy was there involved, but in
State v. Brunn,
22
Wash. 2d
120, 154
P. 2d
826, 157
A. L. R.
1049
(Sup. Ct.
1945), and
State v. Witte,
243
Wis.
423, 10
N. W. 2d
117, 119
(Sup. Ct.
1943), statutes were sustained notwithstanding such provision. In the
Brunn
case the statute permitted appeals in all criminal cases except where there was an acquittal by a jury, and in the
Witte
case it permitted appeals in criminal cases “Erom rulings and decisions adverse to the state upon all questions of law arising on the trial, with the permission of the presiding judge, in the same manner and to the same effect as
Unlike the language in the Fifth Amendment which provides that no person shall be put twice in jeopardy for the same offense, our State Constitution provides that “No person shall, after acquittal, be tried for the same offense.” See Art. I, par. 10, Const, of 1844; Art. I, par. 11, Const, of 1947. The available reports of the proceedings of the 1844 Convention indicate that the change in phraseology was primarily designed to avoid the possibility that a defendant be held immune from further prosecution under the double jeopardy prohibition (State v. Cooper, 13 N. J. L. 361, 370 (Sup. Ct. 1833)) where his first trial ended in a jury disagreement or disposition other than verdict of acquittal. Proceedings, New Jersey Constitutional Convention of 1844 (1942), 153, 412. Cf. State v. Brunn, supra, with State v. Hall, 9 N. J. L. 256, 258 (Sup. Ct. 1827). See 2 Constitutional Convention of 1947 (1951), 1352.
In Smith and Bennett v. State, 41 N. J. L. 598 (E. & A. 1879), the court dealt with the defendant’s contention that his conviction of the crime of murder having been reversed on appeal he could not, under the common law principle against double jeopardy, be brought to trial again for the same offense. The court unanimously rejected this contention in an opinion by Chief Justice Beasley which discussed fully the scope of the double jeopardy principle. Early in his opinion he noted (p. 600) that there is
“nothing inconsistent with the precepts of natural justice in the retrial of a person charged with crime, provided there is reasonable ground to believe that, on the first essay, a just result has not beenreached. In such a position of affairs it would be manifestly just that the matter should be re-investigated, as well on the application of society as on that of the party criminated.”
Later in his opinion he referred with high approval to the dissenting opinion of Justice Crampton (p. 610) in a case where the court ordered the defendant discharged because his earlier trial had resulted in a disagreement. He noted that Justice Crampton’s opinion
“maintains, by much force of argument and authority, that the principle which forbids the putting of the prisoner twice in jeopardy does not apply to any case except such as have resulted in a lawful acquittal or conviction. ‘To make such a case,’ says the learned judge, ‘the prisoner must show that he was “legitimo modo aoquietatus vel convictus,” that is, by due course of law.’ ”
Pinally, at the close of his opinion (p. 617) the Chief Justice left open the question of whether our constitutional provision prohibiting trial for the same offense after “acquittal” contemplated lawful acquittal or acquittal “in point of fact, irrespective of circumstance or mode in point of law.”
In
State v. Meyer,
65
N. J. L.
233
(E. & A.
1900), the court held that where the Supreme Court had reversed a criminal conviction the State could obtain further review in the Court of Errors and Appeals. See
Rule
1:2-3. The opinion of Justice Dixon refers to English authorities supporting review by the Crown
(cf.
Miller,
supra,
at 490) after acquittal and concludes that in any event the statutes of New Jersey authorized review by the State where the conviction had been reversed in the court of intermediate appeal. He left undetermined the question of whether any review could be had by the State where the defendant was acquitted at the trial. In
State v. Hart,
88
N. J. L.
48, 51
(Sup. Ct.
1915), affirmed 90
N. J. L.
261
(E. & A.
1917), this question was presented directly. Justice Swayze, in his opinion for the Supreme Court, cited the conflicting views in
Kepner v. United States, supra,
but declined to comment on the underlying constitutional issue. He found no statutory authority for review by the State after an acquittal at
Although the State has had and still has the right of review upon the dismissal of an indictment (see
Rule
2:5-3(6) (7)), it is clear that under our current statutes and rules of court no similar review of legal rulings may be had by the State in a criminal case where the defendant has been acquitted at trial. And in view of the pertinent issue presented for determination in the instant matter, we find no present occasion to express any view as to whether such review may constitutionally be provided in any form or to any extent.
Cf. State v. Brunn, supra; State v. Witte, supra.
Martin was not charged with violating any provision of the Crimes Act but was charged with violating a provision of Newark’s zoning ordinance. There is a substantial division of authority throughout the country as to whether such charge is civil in nature and appealable by the city upon a finding for the defendant, or criminal in nature and, at least in the absence of express provision to the contrary, appealable only by the defendant in the event of conviction. See
Miller, Criminal Law,
48 (1934); 9
McQuillin, Municipal Corporations (3rd ed.
1950), 554; 116
A. L. R.
120 (1938); 2
Am. Jur.
986 (1936); 37
Am. Jur.
839 (1941).
There are many early cases in our State in which civil proceedings were maintained for violations of ordinances. See
Tyler v. Lawson,
30
N. J. L.
120
(Sup. Ct.
1862);
McGear v. Woodruff,
33
N. J. L.
213
(Sup. Ct.
1868);
Meyer v. Treasurer of Bridgeton,
37
N. J. L.
160
(Sup. Ct.
1874);
Brophy v. Perth Amboy,
44
N. J. L.
217
(E. & A.
1882);
White v. Neptune City,
56
N. J. L.
222
(Sup. Ct.
1893).
Cf. State v. Home Fuel Oil Co. of Ridgewood,
6
N. J. Super.
414, 416
(Cty. Ct.
1949). These cases involved the payment of fines and in
Unger v. Fanwood,
69
N. J. L.
548, 550
(Sup. Ct.
1903), Justice Van Syckel indicated that if the proceeding was for violation of an ordinance, punishable by imprisonment as well as fine, it would be deemed criminal rather than civil.
Cf. Ramsey v. Basil,
19
N. J. Misc.
555, 556
(Com. Pl.
1941). See
Public Torts,
35
Harv. L. Rev.
462, 463 (1922), where the point is made that the provision for punishment by imprisonment makes it clear that the offense is intended to be a crime and governed by principles applicable to criminal proceedings generally. See
State v. Labato,
7
N. J.
137, 147 (1951). But
cf. Huff v. C. W. Goddard Coal and Supply Company,
106
N. J. L.
19, 21
(Sup. Ct.
1930);
State v. First Criminal Judicial District Court,
10
N. J. Misc.
723, 724
(Sup. Ct.
1932). It may be noted that section 22 of Newark’s zoning ordinance
Since the adoption of our new court rules it has become well established that proceedings in municipal courts for violations of ordinances such as Newark’s zoning ordinance are to be governed by the
Rules Governing Practice in the Local Criminal
Courts, and that appeals therein are to be governed by the
Rules Governing Criminal
Practice, particularly
Rule
2:11 which relates expressly to reviews of judgments in criminal causes in inferior courts of limited jurisdiction. See
State v. Yaccarino,
3
N. J.
291, 295 (1949);
Hill v. Borough of Collingswood,
9
N. J.
369, 378 (1952);
Bd. of Health, Weehawken Tp. v. N. Y. Central R. Co.,
10
N. J.
294, 299 (1952). In the
Yaccarino
case the court stated that procedurally at least, and within the intendment of Rule 2:11, prosecution under Neptune’s zoning ordinance was “essentially criminal in nature”; in the
Hill
case the court described proceedings for violation of Collingswood’s zoning and Sunday ordinances as
“quasi-
criminal” and governed by
Rule
8:1
et seq.
prescribing the practice in the local criminal courts and
Rules
8:11 and 2:11 prescribing the method of review; and in the recent
N. Y. Central R. Co.
case the court reaffirmed the
Yaccarino
doctrine and pointed out that appeal from a conviction for violation of Weehawken’s ordinance to regulate and control air pollution should have been taken under
Rule
2:11. In the instant matter, Martin properly appealed to the County Court under
Rule
2:11 and after a trial
de novo
during which oral testimony was taken he was found not guilty. The judgment of the County Court constituted an acquittal and nullified the original judgment in the municipal court.
State v. Hunter,
12
N. J. Super.
128, 131
(App. Div.
1951).
Rule
2 :ll(7i)(5) unequivocally provides that if the defendant is acquitted in the County Court he shall be discharged and all fines and costs paid by him shall be ordered returned. No provision authorizing the city to appeal from the judgment of the County Court acquitting the defendant of the charge of violating its ordinance is to be found in
Rule
2:11.
The city advances the additional contention that upon the death of Martin further proceedings abated and his executrix consequently had no status to prosecute the appeal before this court. There are many cases which hold that at common law the death of the defendant, pending appeal from a conviction which is in nature criminal, abated the appeal. See
State v.
Stevens, 133
N. J. L.
488, 490
(Sup. Ct.
1945);
State v. Levin,
137
N. J. L.
69, 71
(Sup. Ct.
1948);
United States v. Mook,
125
F. 2d
706 (2
Cir.,
1942);
City of Salem v. Read, supra;
22
C. J. S., Criminal
Law, § 165,
p.
263 (1940); 96
A. L. R.
1322 (1935). In the
Stevens
case the defendant, while serving a jail sentence in default of payment of fine on his drunken driving conviction, was released on bail pending
certiorari
to review his conviction; the court held that his death abated the
certiorari
proceedings stating that “The questions raised are now moot, and so do not call for decision.” Similarly, in the
Levin
case an appeal from a conviction for breaking and entering was dismissed on the ground that the proceedings had abated by virtue of the defendant’s death while serving the reformatory sentence imposed on the conviction. The court pointed out that this represented the general practice at common law, although there were cases in other states involving fines and costs in which it was held that not only the appeal but the prosecu
In Bower v. State, 135 N. J. L. 564, 568 (Sup. Ct. 1947), the former Supreme Court soundly held that a defendant could have an erroneous conviction set aside on appeal even though the sentence thereon had been fully served. Chief Justice Case aptly noted that the stigma of conviction did not become moot simpty because service of the sentence had been completed. We hold the belief that there is likewise no mootness insofar as the family of a deceased defendant is concerned and that his legal representative should have the opportunity to establish on appeal that the conviction was wrongful. The contrary doctrine would adhere slavishly to an unfair and outmoded procedural concept which our court rules appear to have rejected. See Rule 1:2-3A which provides that “Any party, his legal representative, or other person damnified or aggrieved by any final judgment rendered in a criminal cause may take an appeal to the appropriate appellate court.” Cf. R. S. 2:195-6. We consider that the rule may justly be' construed as furnishing sufficient authority for review at the behest of Martin’s legal representative. • Within its intendment the proceedings were in a criminal court and, though the Appellate Division did not enter any final judgment, its determination that the ordinance prohibited Martin’s operation of the parking lot was. dis-positive and, under the circumstances, ripe for appeal. Cf. Hendrikson v. Koppers Company, Inc., 11 N. J. 600, 95 A. 2d 710 (1953).
The judgment in the Appellate Division is reversed and the judgment of acquittal in the County Court is reinstated.
For affirmance — None.