The opinion of the Court was delivered by WILENTZ, Chief Justice.
In this matter we reconsider, pursuant to the State's motion, our decision reversing the judgment of the Appellate Division and remanding the matter to the trial court for a new trial, State v. Ragland, 101 N.J. 33 (1985). Reconsideration has not persuaded us to change that decision.
Defendant, Gregory Ragland, was convicted by a jury of conspiracy to commit armed robbery, unlawful possession of a weapon, and unlawful possession of a weapon without a permit. Another charge against him, possession of a weapon by a convicted felon (N.J.S.A. 2C:39-7), was severed on defense counsel's motion in order to avoid the inevitable prejudice in the trial of the other charges that would be caused by introducing defendant's prior felony conviction, an essential element in the severed charge. The prior conviction was not admissible to impeach defendant's credibility, since he did not testify.
After the jury's guilty verdict, the severed charge was tried before the same jury. That jury had just convicted defendant of charges that necessarily included a finding that defendant was in "possession of a weapon." The severed charge, as noted above, was possession of a weapon by a convicted felon. Included in the trial court's instructions on the severed charge was the following:
Defendant appealed, claiming that the foregoing portion of the instruction, in particular the emphasized part, deprived him of his right to a fair trial by jury since it amounted to an
This case presents the unique problem that arises when a defendant is charged at the same time with unlawful possession of a weapon and possession of a weapon by a convicted felon. The two charges must be tried separately since proof that defendant was a convicted felon (required in the trial of the latter charge) clearly tends to prejudice the jury in considering the former. If defendant is convicted of unlawful possession of the weapon, the trial of the latter charge (possession by a convicted felon), unless most carefully handled, can amount to a prohibited directed verdict in a criminal case. This, because the jury has already found by its initial conviction that the defendant possessed a weapon. If that same jury is told, in the immediately following trial of the charge of possession by a convicted felon, that it need not concern itself with the question of possession since it has already found that fact by its prior conviction, the defendant is, in effect, deprived of that trial by jury to which he is entitled, namely, one in which the jury must
Such a case, where conviction of unlawful possession is then followed, using the same jury, by a trial for possession by a convicted felon, is a charade in the absence of carefully limiting charges. Introduction of, or reference to, the same jury's unlawful possession conviction, coupled with admission of the prior felony conviction, leads to an almost guaranteed conviction of the crime of possession by a convicted felon. That such a conviction is clearly warranted is beside the point: the problem here is assuring that the defendant is given a fair trial.
The charges are severed for the protection of the defendant. Severance is customary and presumably automatic where it is requested because of the clear tendency of the proof of the felony conviction to prejudice trial of the separate charge of unlawful possession of a weapon. In State v. Ingenito, 87 N.J. 204 (1981), a different jury tried the second charge (possession by a convicted felon). It was given evidence of the prior jury's conviction of unlawful possession in such a manner, we found, as to amount to a direction that it must find possession. We deemed it the equivalent of collateral estoppel in a criminal case and found it improper. Id. at 213-17. We held that the second jury must clearly be instructed that it remains the State's burden to prove beyond a reasonable doubt, regardless of the prior conviction, that defendant possessed a weapon and, again beyond a reasonable doubt, that at that time he was a convicted felon. It was not enough to produce the prior conviction of unlawful possession; indeed, it was improper to do so.
Noting the waste that results when the issue of possession must again be proved before a new jury, we referred to the
There is a cost, therefore, to this efficiency, for there is the possibility that the jury will not independently review the facts again on the issue of possession, since it has only recently found that to be a fact. That cost, however, seems preferable to the cost of trying the two charges together, with the wholly impermissible prejudice that the felony conviction can cause, or trying the two charges independently with two different juries, with the waste of everyone's time involved in re-introducing evidence that has already been admitted.
What is needed in such a matter is a strong instruction to the jury to disregard its prior verdict of possession (for nothing short of that will suffice — unless defendant affirmatively requests that such charge not be given), advising the jury that it is the State's burden to prove that fact beyond a reasonable doubt, allowing the jury, however, to consider the
For that reason we remanded the case to the Appellate Division, citing Collier and Ingram, and for that reason we again reversed, after the Appellate Division again affirmed the conviction, remanding to the trial court for a new trial, which ruling we now decline to disturb on reconsideration.
We referred to Collier in our reversals because in that case there was an explicit direction of a verdict of guilty. We referred to Ingram since it was another instance where the risk of a result similar to a directed verdict required a clear charge concerning the State's burden of proving each element of the crime (statutory presumption of no weapons permit does not release State of burden of proof). We were also disturbed by the use of the word "must" in this context, when, immediately after advising the jury that it had "indicated" possession by its prior verdict, the trial judge said "then you must find him guilty as charged by this court." Since our opinion (101 N.J. 33) was followed by our request to our Committee on Model Criminal Jury Charges to conform those charges to that opinion, our opinion in the case was generally understood as prohibiting instructions in
We have considered this new issue and conclude that use of the word "must" is not erroneous in this charge and in other jury charges. The question has not often been clearly litigated. Nonetheless, federal and state courts have held, albeit sometimes in dicta, that the use of "must" in a jury charge is appropriate. See, e.g., Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961) (noting instruction to jury that if it found "that the Government has sustained [its] burden ... beyond a reasonable doubt ... then you must find the defendant guilty"); Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1894) (quoting with approval instruction to jury that "if you believe the evidence in the whole case, you must find the defendant guilty"); United States v. Cunningham, 423 F.2d 1269 (4th Cir.1970) (holding that instructing a jury "you must find the defendant guilty" was not reversible
It is conceded that the "must" charge is widely used in New Jersey and has been as long as anyone can remember. Defendant refers to the instructions as "commonly used in this jurisdiction" and acknowledges that the "must" charge is found in our model jury charges — frequently, we might add. Defendant calls it "our current system of instructing jurors." We agree. While our review, for this purpose, of jury charges in criminal matters recently before us, as well as our recollection, indicates a great variety in the language used to instruct a jury concerning
The defendant would require a charge that states, in effect, that if the jury does not find a, b and c beyond a reasonable doubt, it must find defendant not guilty, but that if it does find a, b and c beyond a reasonable doubt, then it may find defendant guilty.
While defendant's arguments suggest that the ultimate object is to assure that the jury is not impeded by this coercive language from performing its proper role, the effect of the change is somewhat different. Its only effect, its only tendency, is to make it more likely that juries will nullify the law, more likely, in other words, that no matter how overwhelming the proof of guilt, no matter how convinced the jury is beyond any reasonable doubt of defendant's guilt, despite the law, it will acquit. Even without an explicit charge on the power of nullification, the jury must understand from this contrasting language (must acquit but may convict) that it is quite properly free, and quite legally free (since it is the court who is telling it "may") to acquit even if it is convinced beyond a reasonable doubt of defendant's guilt. Whether the contrast is as clear as "must" and "may," or is expressed in some other way (e.g., "you are authorized to find the defendant guilty," "a guilty verdict would be considered valid or proper," "you have the responsibility to return a guilty verdict," "the State is entitled to the return of a guilty verdict" — all contrasting with "you must acquit"), the message, intended by the charge and so understood by the jury, is that you have the power to nullify and it is permissible for you to do so.
This change in our settled practice, this attempt to modify our present instructions to the jury in order to allow for the uninhibited, robust, exercise of its nullification power, is not commanded by the United States Constitution, the New Jersey Constitution, any statute, or by the common law. The implication of defendant's argument is that the use of the word "must" in this connection violates both his federal and state constitutional rights, since the protected right — nullification — is described in terms of an essential attribute of defendant's right to trial by jury. We have been able to find but one federal case
There is no statute that requires this change. As for the common law, all that the New Jersey cases require is that there be no directed verdict in a criminal case. The use of the word "must," of course, is not the same as a directed verdict. It is not even its functional equivalent. A directed verdict results when the court instructs the jury to find the defendant guilty of a particular charge, as the trial court did in State v. Collier, supra, 90 N.J. 117. There the court "direct[ed the jury] to find the defendant guilty of contributing ..." to the delinquency of a minor. After noting that "no matter how compelling the evidence, a trial court may not direct a verdict against a defendant in a criminal case," id. at 122, and that "in addition `appropriate and proper charges to a jury are essential for a fair trial,'" we said:
The harm of the directed verdict in that case, as in any criminal case, is that it deprived the jury of the power to determine guilt; there is no suggestion or hint in the case that once having determined guilt, the jury's power thereafter to nullify its own determination is entitled to similar protection.
In State v. Ingenito, supra, 87 N.J. 204, we held that the evidentiary use of a prior conviction by another jury of the
State v. Simon, 79 N.J. 191 (1979), is sometimes cited in support of the right of a jury to determine innocence despite overwhelming proof to the contrary. In that case certain special questions were submitted to the jury before it was given the responsibility of determining guilt or innocence. The Court found that those questions subliminally suggested guilt, that they conditioned the jury to think in terms of guilt. The
There is no common law in New Jersey to the contrary, either in recent or ancient cases. The concern, in New Jersey as elsewhere, is to rigorously protect the jury's independence in determining the facts and applying those facts to the law; based solely on those findings, the jury determines guilt or innocence; no case in New Jersey purports to protect the jury's "right" to announce a verdict of acquittal despite its determination of guilt, although many recognize the power.
We conclude that the power of the jury to acquit despite not only overwhelming proof of guilt but despite the jury's
It is only relatively recently that some scholars have characterized this power as part of defendant's right to trial by jury and have defended it as sound policy. See, e.g., Scheflin, Jury Nullification: The Right to Say No, 45 S.Cal.L.Rev. 168 (1972); Kaufman, The Right of Self-Representation and the Power of Jury Nullification, 28 Case W.Res. 269 (1978). Like defendant, they take the position that the exercise of the power is essential to preserve the jury's role as the "conscience of the community."
There are various elements in this view of the jury as the "conscience of the community." Some laws are said to be unfair. Only the jury, it is thought, is capable of correcting that unfairness — through its nullification power. Other laws, necessarily general, have the capacity of doing injustice in specific applications. Again, only the jury can evaluate these specific applications and thereby prevent injustice through its nullification power. Cast aside is our basic belief that only our elected representatives may determine what is a crime and what is not, and only they may revise that law if it is found to be unfair or imprecise; only they and not twelve people whose names are picked at random from the box.
Finally, there is an almost mystical element to this contention about the "conscience of the community": before anyone is imprisoned, that person is entitled to more than a fair trial even when such a trial is pursuant to a fair law. He is entitled to
If the argument is that jury nullification has proven to serve society well, that proof has been kept a deep secret. It is no answer to point to the occasions when laws that are deemed unjust have, in effect, been nullified by the jury. That proves only that the power may have done justice in those limited instances, without reflecting on whether, even in those instances, the cost of that justice exceeded its benefit, or whether in other instances it has done more harm, on balance, than the good. We know so little about this power that it is impossible to evaluate it in terms of results.
Since there is neither constitutional nor other legal authority mandating the proposed change in jury instructions, its ultimate justification must be that this new formulation of the proper charge is desirable; desirable that a jury should not be compelled to follow the law, for compulsion to follow the law is the natural tendency of the use of the word "must"; desirable that a jury should be left free to ignore the law, for that is the obvious tendency of telling the jury simply that it "may," or is "authorized" to, bring in a verdict of guilty, after saying it "must" find defendant not guilty. If indeed this is a desirable state of affairs, then the jury should be told of its power, so as to leave no doubt that the jury knows it is not compelled to bring back a guilty verdict despite its finding beyond a reasonable doubt that the defendant has committed the crime. The point here is different from that of those who say they are not sure whether the nullification power is desirable or undesirable, but since it exists, the jury should be told about it — an argument discussed later in this opinion. See infra at 208. Defendant's position is that the nullification power is one of the essential attributes of his right to trial by jury, and that it is
Other consequences should follow a conclusion that the nullification power is desirable. Counsel should be told that they may address that point in summation,
There is another point of view that accepts the existence of the power as a fact, regardless of its desirability, and concludes that if we cannot eliminate it, we should at least make its application equal by making sure every jury knows of it. There is a surface appeal to the equality advocated. If one believes, however, that the exercise of the power is essentially arbitrary,
The fundamental defect in jury nullification is obvious. It is a power that is absolutely inconsistent with the most important value of Western democracy, that we should live under a government of laws and not of men. There are many manifestations of the concept of a "government of laws," and one of the most important is its operation in the administration of criminal justice. It is there that the sovereign is visibly restrained, it is there that we can see most clearly the application of this hard-earned rule, the rule that no one, to the extent man is capable of achieving this goal, no one, shall be found to have violated society's commands unless that command is first announced and then only after a group of free people, hearing all of the evidence, determine that the accused has violated the command. With jury nullification, these free people are told, either explicitly or implicitly, that they are the law, that what the sovereign has pronounced ahead of time either may or may not be followed, and that if they want to, they may convict every poor man and acquit every rich man; convict the political opponent but free the crony; put the long-haired in jail but the crew-cut on the street; imprison the black and free the white; or, even more arbitrarily, just do what they please whenever they please.
One of the biggest problems in the administration of criminal justice is the inequality of its enforcement, an inequality that starts with the inability to find all of its violators (it is sometimes
The underlying fault of nullification is its total arbitrariness. No one knows what causes it or whether what causes it in one instance causes it in another. No one knows what factors are at play. No one tells a jury what the standards are that should be considered in exercising jury nullification, and no jury advises what standards it applied, or that it applied any. The very nature of the power is that it is absolute, unguided, not to be explained. There is no quality that it lacks if the goal is arbitrariness; it is totally and perfectly arbitrary.
Its existence in our system of criminal justice is almost ludicrous. There is no system more carefully designed to assure not simply that the innocent go free, but that at every
Jury nullification is an unfortunate but unavoidable power. It should not be advertised, and, to the extent constitutionally permissible, it should be limited. Efforts to protect and expand it are inconsistent with the real values of our system of criminal justice.
Certainly all defendants, we assume, would favor an expansion of jury nullification. They are less concerned with the
Defendant refers us to the language of the United States Supreme Court in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh'g den., 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968), the case holding the Sixth Amendment right to an impartial jury applicable to state criminal prosecutions:
We agree. The right to trial by jury is intended to protect the citizen from corrupt, overzealous, or arbitrary prosecutors, and from compliant, biased, or eccentric judges; the right to a jury trial, in other words, is his protection against arbitrary law enforcement. It was never designed, however, to protect the defendant from the law, or from the Legislature. It will not do for defendant to recite the acknowledged virtues of jury independence when what is really approved is the dark side of jury nullification.
The difference in this case between the majority and the dissent is narrow. The Court is unanimous in its disapproval of nullification. What separates us are our differing perceptions of the effect of the use of "must." The dissent believes that it
Our review of recent jury charges convinces us that absent some significant tone of voice undisclosed by the record, the numerous variations of charges melt into each other, none of them either coercing the jury or suggesting that it is free to ignore the law. By the time one is through reading these charges, it becomes clear that "should," "will," and "must" are probably functionally identical, and the list could go on to include "shall," "it is your duty," "the State is entitled," etc. In that sense we believe that the dissent, even if it prevailed, would not achieve any significant change in our jury system. What is disturbing is that the dissent believes that such a change is necessary. On the contrary, we believe that the last thing a jury needs is a reminder of its ability to let the guilty go free. A trial should be fair to the people, too, not just to the defendant.
We reverse the judgment of the Appellate Division and remand the matter to the trial court for a new trial.
HANDLER, J., concurring in part and dissenting in part.
The Court in this case sustains defendant's claim that in the trial on the charge of possession of a weapon by a convicted felon, the trial court, by referring the jury to its prior finding of possession, in effect directed the return of a guilty verdict, thereby denying defendant's right to a jury trial through what amounts to an improper use of collateral estoppel. As a result, there must be a reversal of defendant's conviction. I agree. In
Defendant's claims in this case relating to impermissible aspects of the trial court's charge invite our examination of the propriety of the bifurcated or sequential trial that was undertaken in this prosecution. As noted by the majority, in State v. Ingenito, 87 N.J. 204 (1981), on facts similar to this case, the defendant was first convicted of the unlicensed transfer of weapons. Thereafter, the previously severed charge of possession of a weapon by a convicted felon was tried before a different jury. The only evidence offered at this second trial to prove the possession element was the aforementioned conviction on the unlicensed transfer charge that had been returned by another jury in the first trial. The Court found this to be an unacceptable use of collateral estoppel, concluding that the right to a jury trial requires that "the same trier of the fact decide all of the elements of the charged offense." State v. Ingenito, supra, 87 N.J. at 217 (emphasis in original). However, the Court specifically reserved judgment on the validity of the procedure that was followed in this case involving a bifurcated trial by the same jury.
In addressing the validity of this procedure, which is now directly before the Court, we accept as sound the Appellate Division's determination that the proceedings at the trial level constitute a single trial conducted in two phases, rather than two distinct trials. Of critical importance is that this procedure empowers the same jury to consider all of the evidence and determine each of the essential elements that must be proven
As pointed out by the Court, defendant additionally contends that notwithstanding the propriety of the bifurcated trial procedure, the trial court improperly focused the jurors' attention in the second part of the trial upon their earlier finding of possession. Defendant asserts that this amounted to the direction by the court regarding a particular fact-finding on the element of possession that was tantamount to the direction of a guilty verdict. This error was compounded, according to the defendant, by the court's further instruction that the jury, upon finding the elements of the crime, "must find [the defendant] guilty" of the crime charged. I believe defendant's claim has merit. Accordingly, I would regard the use of such language in criminal trial instructions as improper.
The assertion in this case that the trial court's charge to the jury had the effect of directing the return of a guilty verdict implicates the right to a trial by jury in criminal cases guaranteed by both federal and state constitutions. U.S. Const. amend. VI; N.J. Const. (1947) Art. I, para. 9. This constitutional right imports the participation of a jury that is independent and impartial. We have previously gone to significant lengths, in a variety of contexts, to safeguard the integrity of the jury in the administration of criminal justice, particularly as that bears upon the final determination of ultimate criminal guilt or innocence. See, e.g., State v. Collier, 90 N.J. 117 (1982); State v.
In this type of sequential trial involving the same jury, as long as the jury is given the opportunity to consider all relevant evidence and is not prevented or inhibited from making independent fact-findings with respect to each criminal charge, the State should be free to rely on evidence introduced in the course of the entire trial proceedings. In particular, the jury should be able to consider in the subsequent or second phase of the trial proceedings any evidence that is relevant to the remaining charge then being tried even though it was introduced in the earlier phase of the trial. If in the second phase of a bifurcated trial the State seeks to rely on such earlier-introduced evidence, the court in its charge may refer to that evidence but should not otherwise induce the jury to make a particular finding or to reach a particular verdict based upon that evidence.
In this case, the trial court did not, in the second phase of the trial, merely refer to the earlier-introduced evidence relating to possession. Rather, it specifically focused the jury's attention upon its previous fact-finding of possession. In doing so, the court failed to make it clear to the jury that it was required to make a new and independent finding regarding this element of the charge then being tried. See State v. Ingenito, supra, 87 N.J. 204. Thus, as pointed out by the majority, the trial court's instruction could have been interpreted by the jury as a direction or strong suggestion that it not simply consider and weigh the evidence of possession, but also that it need only adopt its prior fact-finding or make a finding that would be consistent with its prior determination of the element of possession. In this posture, the potential harm is reminiscent of that considered in State v. Collier, supra, 90 N.J. 117.
Thus, I agree with the Court that to avoid this kind of error, the trial judge in this case should have clearly instructed the jury in the second phase of the trial that it must determine whether the evidence, including that evidence previously adduced
As noted, the prejudicial effect of the trial court's charge was aggravated by another related aspect of the court's instructions. In the course of instructing the jury as to the consequences of a determination of the elements of the crime, the trial court reminded the jury of its previous determination of possession, charging the jury that upon finding the elements of the offense, it "must find [the defendant] guilty." In my opinion, this so-called must-charge implicated not simply the jury's independent role in making findings of fact, but its singular responsibility for determining ultimate criminal guilt or innocence.
We have generally accorded the jury a unique assignment in the trial of criminal cases, reflecting our acceptance of the jury as society's surrogate in the effectuation of its criminal laws. The jury acts as "the conscience of the community and the embodiment of the common sense and feelings reflective of society as a whole," State v. Ingenito, supra, 87 N.J. at 212. This reserved freedom of conscience in a jury has not generally been considered either mysterious or mischievous (cf. supra at 204-207). The ultimate discretion accorded to a jury in a criminal case is deeply embedded in our jurisprudence and has served society well. See Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury: 1200-1800 (Univ. of Chicago, 1985) (ability of jury to express its conscience is the distinguishing historical characteristic of the jury system in the administration of criminal justice).
I believe that, in the context of the entire charge, the language that commanded the jury, "you must find [the defendant] guilty," had the potential to be construed, or misconstrued, as a direction or order to return a verdict of criminal guilt; if so understood, it would impermissibly preempt the jury from its sole and exclusive responsibility of determining ultimate criminal guilt or innocence. This language, particularly when coupled with any other errors touching upon the evidence in the case or the jury's fact-finding function, generates a risk that it will be understood and applied by a jury as a judicial direction for the return of a verdict of criminal guilt.
Other courts have sensed the infirmity of an instruction that conveys such a command. This language weakens the prerogative of a jury to "disbelieve any fact testimony or reject any factual results, uncontradicted or not." People v. Gillespie, 54 Mich.App. 419, 221 N.W.2d 246, 247 (1974); see United States
I readily acknowledge that the actual impact upon a jury of this controverted language is not demonstrable. Concededly, this commanding charge will not always or necessarily result in the judicial direction of a guilty verdict. E.g., State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980); State v. Devoe, 301 A.2d 541 (Me. 1973); Straughter v. State, 247 A.2d 202 (Del. 1968). Compare Watts v. United States, 328 A.2d 770, 773 (D.C. 1974) ("use of the phrase `must find the defendant guilty' could have been erroneously construed by the jury as denying its prerogative of finding the defendant not guilty, notwithstanding the evidence") with Watts v. United States, 362 A.2d 706 (D.C. 1976) rehearing (en banc) (an instruction to a jury that if it found the government had proven the existence of each element of the offense beyond a reasonable doubt, "then you must find the defendant guilty as charged" was not equivalent to a directed verdict of guilty). Additionally, as emphasized by the majority, this vigorous instruction, though not uniform or consistent either in our jurisdiction or elsewhere, is fairly common, thereby suggesting that its use may comport with conventional wisdom.
Nevertheless, I am satisfied that the sounder and more accurate assessment of this language will recognize its potential
This language, moreover, is not essential in describing to a jury its crucial responsibility — the final determination of ultimate criminal guilt or innocence. Trial judges in all criminal cases should charge the jury generally in a manner that conveys to the jury an understanding of its essential and exclusive role. This entails determining the facts based solely on evidence presented at trial, making such fact-findings with respect
To communicate this basic understanding to the jury it would, in my view, be appropriate to instruct the jury in relevant measure as follows: if the jury has independently determined that each essential element of the crime charged has been established beyond a reasonable doubt by the evidence presented in the course of the trial, then, under the law, (1) it has the responsibility to return a guilty verdict, or alternatively, (2) it should return a guilty verdict, or alternatively, (3) the State is entitled to the return of a guilty verdict. Although there may be other comparable formulations, I believe these proffered instructions achieve the objectives of conveying to the jury the essence of its responsibility to determine ultimate criminal guilt or innocence, providing the jury with firm guidance, vindicating the administration of criminal justice under law, and preserving jury independence.
While my views on the use of the so-called must-charge are different from the majority's, I agree with the Court that a defendant is not entitled to an instruction advising the jury in a criminal prosecution of its unreviewable prerogative to acquit a defendant even though guilty-in-fact. Although we recognize that a judge is powerless in a criminal case to review and overturn a verdict of not guilty, we do not endorse the proposition that recognition of a jury's prerogative to acquit in any case compels acknowledgement of a cognizable right or legally enforceable power in a jury to return verdicts contrary to the law as applied to proffered evidence. See United States v. Dougherty, 473 F.2d 1113, 1133-34 (D.C. Cir.1972); State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984); State v. Collier,
For these reasons, I dissent in part from the Court's opinion, concurring in the balance of its opinion and its judgment reversing the conviction.
HANDLER, POLLOCK and O'HERN, JJ., concurring in result.
For reversal — Chief Justice WILENTZ, and Justices CLIFFORD, GARIBALDI, STEIN, HANDLER, POLLOCK and O'HERN — 7.
For affirmance — none.