holding that reversal of order for new trial did not put defendant twice in jeopardy because that ruling “place[d] him in the precise position he was in after the verdict in his first trial”
How later courts described this case
- holding that reversal of order for new trial did not put defendant twice in jeopardy because that ruling “place[d] him in the precise position he was in after the verdict in his first trial”
- “[T]he trial court’s ruling on [a motion to grant a new trial] shall not be reversed unless it clearly and convincingly appears that there was a manifest denial of justice under the law.”
Written by the judges who cited it.
The opinion
Pashmah, J.
(concurring and dissenting in part). I agree with the result reached by my colleague Mr. Justice Clifford. There is indeed no valid basis for a new trial. However, I feel compelled to indicate that the majority has *376 made unwarranted observations and conclusions and perhaps has even enunciated superfluous judicial dicta.
Unlike the majority, I have no difficulty interpreting State v. La Fera, 42 N. J. 97 (1964). It is not unworkable nor is it confusing. That decision permitted an appeal by the State where the said grounds were “collateral in nature” and involved “issues not litigated in the main case.” (42 N. J. at 103). The basis for that Court’s conclusion was sound and most perceptive. The reasoning of Chief Justice Wein-traub in La Fera was supported by his scholarly dissertation analogizing the State’s right of appeal from a judgment in a habeas corpus, proceeding to the right of an appeal from the granting of a motion for a new trial. There was no reason in that case for our Court to decide that the State had a right of appeal from an order for a new trial based on issues litigated in the main case or upon the record of the trial itself.
Although the La Fera Court ten years ago recognized the expanding “reach of habeas corpus” (42 N. J. at 101), the majority has unnecessarily committed the present Court to the extreme limits of this procedure. In an appropriate legal and factual setting, a full review of the scope of habeas corpus might be wise. This is, however, not the setting.
My colleagues have articulated three reasons as the bases opposing State appeal and they have responded to that opposition. I subscribe to that reasoning process. It is the “additional positive reasons” which give me some concern. I cannot agree with the observations and comments concerning safeguards which I firmly believe should belong exclusively to a defendant in a criminal trial. Society will not be benefited by resolving grey areas of “potential error” to the detriment of a defendant. In my opinion, State trial judges do not “lean toward the defense in making rulings.” By and large, I believe they “call the shots” as they see them. In this instance, I do not think it is necessary to chastise or remind the trial bench of their judicial obligations. They *377 are well aware that they must discharge those obligations fully and completely.
The right of the State to seekTeave to appeal under La Fera should be extended to any grant of a new trial. I am satisfied in this case that the mandate for a new trial was based on an erroneous interpretation of State v. Gattling, 95 N. J. Super. 103 (App. Div.), certif. den., 50 N. J. 91 (1967) and N. J. S. A. 2A:121-3(a).
The judgment of conviction should be reinstated.
P ashman, J., concurs in result.
For reversal and reinstatement — Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan, Pash-man and Clifford — 7.
Opposed — Hone.