On motion to dismiss indictment and plea of autrefois convict.
The matter of State v. Victor Labato comes before the court on a plea of autrefois convict , entered on behalf of the defendant to an indictment from the grand jury of this county charging him with unlawfully and knowingly having in his possession certain paper slips, documents and memorandum pertaining to the business of lottery policy so-called and otherwise called under the name and style, "numbers." In addition to the entry of the common law plea the defendant has also moved to dismiss the indictment, which motion was accompanied by supporting affidavits, the tenor of which was that he had previously been tried in the Camden City Police Court for a violation of the Disorderly Persons Act upon complaint filed in that court. The facts and circumstances alleged in that complaint were identical with those which are the basis for the indictment under consideration.
The State, acknowledging that the facts upon which the indictment is based are the same as those upon which the disorderly conduct charge was made, made no rejoinder to the plea of autrefois convict but submitted an affidavit of the prosecutor of the pleas in which it was stated that he, the prosecutor, upon receiving information that the defendant was to be tried summarily in the Camden City Police Court, made a personal request of the acting judge that the defendant
be not thus tried and that the court entertain a complaint charging a violation of the Crimes Act and that he be held for disposition thereof by the grand jury of the county. That this is so is conceded by the defendant and hence there is presented for determination on an agreed set of facts the issue of whether or not the defendant is now in double jeopardy, contrary to the prohibition of the Constitution of 1947.
This provision of the Constitution, Article I, paragraph 11, declares in its pertinent part that "no person shall, after acquittal, be tried for the same offense," and is a verbatim repetition of Article I, paragraph 10, of the Constitution of 1844. This identity of language is no mere coincidence, the Legislature having expressly provided, in its submission to the electorate of the call of a constitutional convention, that no charter could be adopted without including the Bill of Rights, which provides the guarantee of those natural and unalienable rights belonging to free and independent men. Therefore, while no interpretation has been put upon this clause since the effective date of the Constitution of 1947, what has been judicially stated by our appellate courts in interpretation of the clause as it stood in the Constitution of 1844 remains, if not as controlling authority, at least as a reliable guide for courts of first instance. Thus resort may profitably be made to the case of State v. Cooper , 13 N.J.L. 361 (Sup. Ct. 1833), a century-old land-mark, followed without deviation in this State and cited and acknowledged in virtually every jurisdiction for its lucid exposition of the principle of double jeopardy. While the constitutional language then took the form of the Federal Constitution, the substance and meaning has been in no sense altered or weakened, as witness this observation by the opinion writer, Justice Drake: "(though) the Constitution of New Jersey adopts and declares this important principle * * * * 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." There follows an illuminating review of the authoritative English texts and cases up to then treating with this subject and in conclusion the following determination: "I have so far considered the case of a plea of former acquittal; because it depends upon the same principle of that of autrefois convict , and the writers are more full in their notice of it, than of the latter; and it is a general rule that in cases where an acquittal upon the first indictment would bar a second, a conviction on the first would have the same effect."
At this point emphasis must be put upon the fact that the authority upon which the Camden City Police Court acted and upon which the present indictment rests emanates from the same source, the Legislature of the State, thus rendering inapplicable that line of cases of which United States v. Lanza , 260 U.S. 377 (1922) and Howe v. Treasurer of Plainfield , 37 N.J.L. 145 (Sup. Ct. 1874) are examples in the federal and state jurisdictions respectively, because in each of the instances there considered the subsequent prosecution and punishment was at the hands of an authority or sovereignty separate and distinct in its field from that which had acted antecedently. In the former case it was held that conviction in a state court for violation of a state prohibition law did not justify a defense of double jeopardy in a proceeding by the United States against the same defendant for violation of the federal prohibition law. In the latter case it was held that a summary proceeding for violation of an ordinance of the city of Plainfield forbidding the sale of liquor without a license was not barred because it was also punishable as a misdemeanor. The original support for this
doctrine appears in the case of Moore v. People of the State of Illinois , 14 Howard 13 (1852), in which the United States Supreme Court, through Justice Grier, said: "Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both."
In the Lanza case, after citing and reaffirming the principle as laid down in Moore v. People of the State of Illinois , Chief Justice Taft discourses upon a practical consideration that demanded recognition because of the ever present necessity for preventing unseemly conflicts between federal and state sovereignties in the following terms: "If Congress sees fit to bar prosecution by the Federal courts for any act when punishment for violation of State prohibition has been imposed it can of course do so by proper legislative provision but it has not done so. If a state were to punish the manufacture, transportation and sale of intoxicating liquor by small or nominal fines, the race of offenders to the courts of that state to plead guilty and secure ...