88 N.J.L. 48 | N.J. | 1915
The opinion of the court was delivered by
This case presents the question that was expressly reserved by the Court of Errors and Appeals in Meyer v. State, 65 N. J. L. 233 (at p. 237), whether after such an acquittal as will protect the defendant from being tried again, the state may prosecute a writ of error in order to correct a misconstruction of law. The trial judge directed a verdict for the defendant and the record shows that the jury in accordance with that direction found the defendant not guilty. No judgment was entered upon the verdict and in strictness this writ of error might be dismissed for that reason. But in view of the laxity in the practice spoken of by Chief Justice Green in West v. State, 22 Id. 231, and of the fact that the question was not raised at the argument, we pass it with the mere remark that it would be better to enter the judgment in proper form. This may hereafter become important if our legislature should ever pass an act like the act of congress of 1907 permitting the state to sue
It was held in West v. State to be the better opinion that it is not necessary in a criminal case to sustain a plea of autrefois acquit, that judgment should be rendered on the former verdict. The reason is that the verdict itself constitutes the bar. Our constitution provides (article 1, paragraph 10) that no person shall, after acquittal, be tried for the same offence. The point made by the state is that an acquittal brought about by an error of the trial judge is not a legal acquittal and therefore not within the meaning of the constitution. That there are arguments of great weight on both sides of this question is shown by the difference of opinion that arose in the Supreme Court of the United States on a writ of error to the Supreme Court of the Philippine Islands involving the construction of a somewhat similar provision in the act for the civil government of the Philippines. Kepner v. United States, 195 U. S. 100. AVe express no opinion on the constitutional question, since this case can bn decided on a much narrower ground. In .order to secure a review of a trial error, the state must be able to have a bill of exceptions and a writ of error to remove the case to this court. In Meyer v. State, 65 N. J. L. 233, it was decided that the statute provided for such a writ from the Court of Errors and Appeals to the Supreme Court. No statute exists allowing a writ of error from the Supreme Court to the Oyer and Terminer or the Quarter Sessions. It is true that the reasoning of the opinion is that in the absence of such a statute, a writ of error would lie in certain cases under
Por these reasons we think the present writ should be dismissed.