On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 4 N.J. Super. 539.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
The appeal is from a judgment of the Appellate Division of the Superior Court affirming a judgment of conviction rendered against appellant April 28, 1949, in the Middlesex County Court on an indictment charging carnal abuse of a woman child 14 years of age on March 29, 1948, contrary to R.S. 2:163-1.
The defense of autrefois acquit was introduced under a plea of not guilty, following the denial of a pretrial motion to dismiss the indictment on that ground (Rule 2:5-2 et seq.); and the single point now made is that the accused was subjected to double jeopardy in contravention of Article I, paragraph 11 of the Constitution of 1947, safeguarding a person, after acquittal, against trial for the same offense. The case is here under Article VI, section V, paragraph 1 (a) of the Constitution and Rule 1:2-1 (a) of this court.
These are the essential facts and circumstances: The prior judgment of acquittal was entered March 4, 1949, on an indictment accusing appellant of the commission of the like offense on the same woman child on November 15, 1948. On the trial of that indictment, evidence was adduced by the State tending to prove not only the offense therein pleaded, but also the offense laid in the indictment upon which the judgment now under review was rendered; and the trial judge instructed the jury impaneled to try the issue that if they believed beyond a reasonable doubt that the accused "did commit an assault or debauchery of the female sexual organs" of the prosecutrix, they should return a verdict of guilty of carnal abuse. Then came this crucial instruction: "Much has been said in this case concerning the fixing of specific dates. The authorities of our State for the legal proposition that the State is not bound in a carnal abuse case by the date set forth in the indictment have handed down numerous decisions. In the case of State v. Yanetti (101 N.J.L. 85 (E. & A. 1925)), Chancellor Walker, speaking on behalf of the Court of Errors and Appeals, said: 'We hold that in an indictment for carnal abuse the averment of the time of the commission of the act is formal, and not of the essence of the offense, because it is not a legal constituent of the crime, which is a crime whenever committed; and in a prosecution for carnal abuse, proof from which it may be inferred that the offense was committed on the day named in the indictment, or on any other day without the statute of limitations, is sufficient to sustain a conviction.'"
Thus, the jury in that case were instructed, not that there was no need for strict correspondence between the allegata and the probata as to the time of the commission of the specific offense laid in the indictment, but rather that proof of the alleged separate and distinct offense of like character not charged in that indictment would call for a conviction; and it follows as a necessary consequence that the verdict of acquittal embraced both of the alleged offenses made the subject of proof.
The accused was there tried and the case submitted to the jury on the hypothesis that proof of either of the specific offenses on which evidence was taken would warrant a conviction upon that indictment; and the State will not now be heard to say that the judgment therein rendered does not constitute a bar to prosecution for the offense not specifically laid to him in the first indictment. The judge in his charge on the trial of the second indictment declared that the prosecutrix had testified "that on several occasions this man violated her;" and then he made special allusion to certain circumstances which in his view tended to corroborate the child's relation of what had occurred on March 29, 1948, and therefore to establish the accused's guilt of carnal abuse on that occasion. These were treated as separate and distinct offenses, not a single offense of uncertain date. While the jury were handed the indictment, they were not told that there could be a conviction only if there were proof beyond a reasonable doubt of the perpetration of the particular offense alleged to have occurred at the time fixed in the indictment. Quite the contrary. Proof of the commission of the offense "on any other day without the statute of limitations" would suffice. There cannot be the slighest doubt that the verdict on the earlier indictment constituted an acquittal in fact of both these alleged offenses. A distinction is to be made between the charging of one offense of uncertain date where a variance between the allegata and probata would not be fatal, and two separate and distinct offenses. See, in this connection, State v. Sing Lee, 94 N.J.L. 266 (E. & A. 1920); State v. Calabrese, 99 N.J.L. 312 (Sup. Ct. 1924).
In the earlier case, the accused was tried, without objection, for both of the alleged offenses under an indictment charging but one; and it is not now open to the State to suggest that the accused was not then subject to trial on the one charge for want of an indictment making that specific allegation and may again be tried on that charge notwithstanding the acquittal. That course would not only contravene the spirit and indubitable reason of the cited constitutional mandate, but would run counter to elemental justice. [3 NJ Page 418] It is an ancient principle of the common law that one may not be twice put in jeopardy for the same offense. The pleas of autrefois acquit and autrefois convict are grounded on the maxim that "a man shall * * * not be brought into danger of his life for one and the same offense more than once." Hawkins' Pleas of the Crown, pp. 515, 526. Blackstone stated the doctrine to be that "when a man is once fairly found not guilty upon an indictment, or other prosecution, before any court having competent jurisdiction of the offense, he may plead such acquittal in bar of any subsequent accusation for the same crime;" it protects against a second prosecution "for the same identical act and crime." 4 Blackstone's Comm. 335, 336. Chitty said that both these pleas depend on the principle that "no man shall be placed in peril of legal penalties more than once upon the same accusation." 1 Chitty Cr. L. 452, 462. In civil cases at common law the principle is expressed by the maxim that no man shall be twice vexed for one and the same cause. In this class of cases the plea of a former judgment for the same matter, whether it be in favor of the defendant or against him, is a good bar to an action. Ex parte Lange, 18 Wall. 863, 21 L. Ed. 872 (1873). This is one of the limitations upon arbitrary power confirmed by the Magna Charta in 1215, in the provision (ch. 29) ensuring the essentials of individual right and justice and the ancient liberties of the freeman against assault except "by lawful judgment of his peers, or by the law of the land." Immunity from double jeopardy was one of the cherished basic liberties of the ancient common law comprised in this guaranty of the Great Charter. The principle was secured by the successive constitutions of New Jersey. Apropos of the constitutional recognition of the doctrine, Mr. Justice Drake in 1833 said: "Our courts of justice would have recognized it, and acted upon it, as one of the most valuable principles of the common law, without any constitutional provision. But the framers of our constitution have thought it worthy of especial notice. And all who are conversant with courts of justice, and the proceedings in them, must be satisfied that this great principle forms one of the strong bulwarks
of liberty; and that if it be prostrated, every citizen would become liable, if guilty of an offense, to the unnecessary costs and vexations of repeated prosecutions, and if innocent, not only to those, but to the danger of an erroneous conviction from repeated trials." State v. Cooper, 13 N.J.L. 361, 370 (Sup. Ct. 1833). See, also, State v. De Hart, 7 N.J.L. 172 (Sup. Ct. 1824); State v. Hall, 9 N.J.L. 256 (Sup. Ct. 1827); United States v. Perez, 9 Wheat. 578, 6 L. Ed. 165 (1824).
To sustain the plea of autrefois acquit, there must be an acquittal of the offense charged in law and in fact. Com. v. Myers, 1 Va. Cas. 188; Wortham v. Com., 5 Rand. (Va.) 669 (1827); Com. v. Goddard, 13 Mass. 455 (1816); McCreary v. Com. 29 Pa. 323 (1857); People v. Helbing, 61 Cal. 620 (1882); Com. v. Roby, 12 Pick. (Mass.) 496 (1832); Burton v. United States, 202 U.S.  345, 26 S. Ct. 688, 50 L. Ed. 1057 (1905). It has been said that the true test of former jeopardy is whether the evidence necessary to support the second indictment would have been sufficient to secure a legal conviction upon the first; but this is not an absolute rule. Com. v. Roby, supra; Wharton's Criminal Law (12 th Ed.), § 396. And where the accused may be convicted of a lesser offense ...