McGeehan, Jayne, and Goldmann. The opinion of the court was delivered by Jayne, J.A.D.
The question addressed to us by the present appeal emanates from the following march of events. The defendant was indicted and convicted in the Camden County Court of obtaining money by false pretenses in violation of R.S. 2:134-1. He thereupon prosecuted an appeal to this court in quest of a reversal of the judgment of conviction. The appeal was constructed upon the assignment of seven grounds. We resolved that the judgment should be reversed in consequence of two rulings of the trial judge that we deemed to have been erroneous. The one of present significance related to the denial of the defendant's motion for a judgment of acquittal at the close of the State's case.
Our conclusion was that the evidence adduced by the State was insufficient to establish to a prima facie degree a violation by the defendant of the essential elements of the alleged crime and that the trial judge committed harmful and prejudicial error in the denial of the defendant's motion. The other ruling to which we expressly alluded concerned the admission of evidence of other similar activities by the defendant for the purpose of exposing his criminal intent, which testimony by reason of the lack of proof of the commission of the crime charged was inadmissible. 13 N.J. Super. 99 (App. Div. 1951).
In pursuance of our determination a mandate issued declaring the reversal of the judgment of conviction and directing in the conventional language "that the record and proceedings be remitted to the said Camden County Court to be there proceeded with in accordance with the rules and practice relating to that Court, consistent with the opinion of this Court."
The prosecutor of the pleas thereafter moved for a retrial of the defendant under the same indictment. The proposed undertaking of the prosecutor was immediately resisted by counsel for the defendant upon the insistence that this court having decided that the motion for a judgment of acquittal at the trial (founded upon the insufficiency of the evidence) should have been granted, the indictment should now be dismissed or a judgment of acquittal entered. The legal propriety of the orders denying the applications of the defendant for the dismissal of the indictment and for the entry of a judgment of acquittal constitutes the subject matter of the present appeal.
The question presented to us, as expressed by the defendant, is: "Would not the defendant suffer double jeopardy if retried upon the present indictment?"
The maxim that one may not be twice put in jeopardy for the same offense is expressive of an ancient principle of the common law. The term "jeopardy" appears in the Year Books, although not in the sense of the present day. Kirk, Jeopardy During the Period of the Year Books , 82 U. of Pa. L. Rev. 602 (1934). The principle was comprehended and confirmed by the Magna Charta of 1215. The doctrine of double jeopardy became a rampart or bulwark built with the materials of natural justice to shield the freeman from the oppressive persecutions theretofore available to an autocratic, arbitrary, or tyrannical government.
The limitation "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb" was embodied in the Fifth Amendment to the Constitution of the United States, and such a provision expressed with some
variations of phraseology is incorporated in the constitutions of all except about five of the States. We do not have the slightest inclination to deteriorate the wholesome efficacy of the principle in the administration of justice, but like many other common law principles it has over the years developed the contours of greater maturity.
The point of immediate concern is whether the limitational scope of the rule pertaining to double jeopardy as recognized in our State encompasses the situation disclosed by the present appeal.
The inhibition contained in our State Constitution of 1844 (Art. I, par. 10) and transplanted in our new Constitution of 1947 (Art. I, par. 11) reads: "No person shall, after acquittal, be tried for the same offense." It may be of some significance to observe that the inclusion of the phrase "after acquittal" in the pertinent provision of our Constitution appears to have been distinctly deliberate in view of the survey that this phrase is employed in the comparable sections of only about seven other States. "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)." State v. Labato , 7 N.J. 137, 143 (1951).
Chief Justice Beasley in Smith and Bennett v. State, supra (at p. 616) stated:
"This result, arrived at on the foundation of the general principles of the common law, is much fortified when we come to a consideration of the provision touching this subject, contained in the constitution of this state. That provision is unlike the cognate regulation contained in the national constitution, or in those of the several states, in the circumstance that it embraces a much narrower field. It is section ten of article one that relates to this subject, and it is in these words, viz., 'No person shall, after acquittal, be trial for the same offence.' The expression of immunity in this particular class of cases would seem to give rise to the implication of the exclusion of immunity in all other classes.
A second trial is not interdicted when the first trial has proved abortive by reason of the mistake or misconduct of the judge or jury, or from accident, but only in the one case where the trial has resulted in an ...