On appeal from the Camden County Court, whose opinion is reported in 12 N.J. Super. 578.
For affirmance -- Justices Heher, Wachenfeld, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt, and Justices Case and Oliphant. The opinion of the court was delivered by Heher, J.
The question here is the sufficiency of the plea of double jeopardy interposed by defendant Labato to an indictment returned in the Camden County Court on February 16, 1950, charging that on a given day he "unlawfully and knowingly did have 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 of numbers," in contravention of R.S. 2:147-3. The plea proceeds from the conviction of the accused in the Police Court of the City of Camden on February 2, 1950, on a complaint alleging that he "did unlawfully have in his possession" the self-same "number slips," in violation of R.S. 2:202-16, providing that the possessor of lottery slips or memoranda pertaining "to the business of a number game," as therein defined, shall be adjudged a "disorderly person." To this complaint, the accused "entered a plea of non vult " and "received a sentence of $200 or 30 days in jail," so runs the agreed statement in lieu of the record.
The agreed statement embodies a concession by the State that "the proof necessary to convict on the indictment would necessarily also convict on the disorderly charge," and "the proof necessary to convict on the disorderly charge would support a conviction on the indictment," and an acknowledgment by the accused that "his prosecution as a disorderly person" in the police court "was over the objection of the County Prosecutor, who had demanded" that the accused "be prosecuted under the Crimes Act." The plea of autrefois convict was sustained by the county court. The State's appeal from the consequent judgment was certified here for decision on our own motion.
It is now contended by the State that the accused's conviction as a disorderly person is not a conviction of crime and the principle of former jeopardy has no application, particularly because the police court did not have jurisdiction of the criminal offense laid in the indictment and the county court did not have jurisdiction of the offense made punishable by
the Disorderly Persons Act; and that the objection of the county prosecutor to the prosecution of the accused as a disorderly person served to deprive the police court of jurisdiction of that proceeding.
The Constitution of 1947 provides that no person shall, after acquittal, be tried for the same offense. Article I, paragraph 11. This provision, in itself, goes no further than to forbid the retrial of a person who has been acquitted of an offense. Smith and Bennett v. State, 41 N.J.L. 598 (E. & A. 1879). But the enumeration of "rights and privileges" in this article of the Constitution "shall not be construed to impair or deny others retained by the people." Article I, paragraph 21. And among the "natural and unalienable rights" secured by the first paragraph of Article I "are those of enjoying and defending life and liberty." The Constitution of 1844 had the same provisions. Article I, paragraphs 1, 10, 21.
It is an ancient principle of the common law that one may not be twice put in jeopardy for the same offense. This is one of the limitations upon arbitrary power confirmed by King John's Magna Charta of 1215, in the provision (c. 29) ensuring the essentials of individual right and justice and the ancient liberties of the freeman against interference "but by lawful judgment of his peers, or by the law of the land." Immunity from repeated jeopardy was one of the cherished basic liberties of the early common law comprehended in this guaranty of the Great Charter. State v. Di Giosia, 3 N.J. 413 (1950). The constitutional and common-law protection is not only against the peril of a second punishment, but also against a second prosecution and trial for the same offense. Levin v. United States, 5 Fed. (2 d) 598 (1925), certiorari denied, 269 U.S. 562, 46 S. Ct. 21, 70 L. Ed. 412 (1925); Donato v. United States, 48 Fed. (2 d) 142 (1931). Chitty said that the plea of autrefois acquit rests on the principle that "no man shall be placed in peril of legal
penalties more than once upon the same accusation. * * * It is not, in all cases, necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other." And the plea of autrefois convict depends on the principle that "no man shall be more than once in peril for the same offense." 1 Chitty Cr. L. 452, 455, 462. The rule of former jeopardy has reference to criminal prosecutions only; but the pleas of former conviction and acquittal involve also the doctrine of res judicata, for the prior judgment, in its own nature, is conclusive of the subject matter, leaving nothing for subsequent adjudication, and is, in itself, a bar to a second prosecution. Smith and Bennett v. State, supra. In civil cases at common law the principle is expressed by the maxim that no one 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). The doctrine has its roots in natural justice, to shield the freeman from the oppressions and persecutions of arbitrary government. State v. Di Giosia, supra. Thus, constitutional guaranties against double jeopardy are merely declaratory of the common law. Kepner v. United States, 195 U.S. 100, 24 S. Ct. 707, 49 L. Ed. 114 (1904); Commonwealth v. Roby, 12 Pick. 496 (1832); Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184 (1907); Ex parte Bornee, 76 W. Va. 360, 85 S. E. 529 (1915); State v. Healey, 136 Minn. 264, 161 N.W. 590 (1917).
There is general agreement as to the essential quality of the principle itself, but endless conflict of decision on the question of identity of offenses. The true test of former jeopardy would seem to be whether the evidence necessary to sustain the second indictment would have been sufficient to secure a legal conviction on the first. State v. Di Giosia, supra. The rule deducible from ...