Eastwood, Bigelow and Francis. The opinion of the court was delivered by Francis, J.c.c. Bigelow, J.A.D. (dissenting).
The problem here is whether or not defendant's plea of autrefois acquit to an indictment charging him with causing the death of one Juanita Shoopman in violation of R.S. 2:138-9 should have been sustained.
On February 15, 1951, the defendant, while driving an automobile on a public highway in the Township of Mansfield, Burlington County, New Jersey, was involved in an accident. On the same day a complaint was made in the Mansfield Township Municipal Court charging him with violation of section 96 of the Motor Vehicle Act (R.S. 39:4-96) in that he drove an automobile carelessly and heedlessly in wanton disregard of the rights and safety of others. Trial thereon on March 15, 1951, resulted in acquittal.
On May 24, 1951, an indictment was returned against him, charging that on February 15, 1951, in the Township of Mansfield he "unlawfully did cause the death of one Juanita
Shoopman, by driving an automobile carelessly and heedlessly in wanton disregard of the rights and safety of her, the said Juanita Shoopman, contrary to the provisions of R.S. 2:138-9."
To this indictment the defendant interposed a plea of autrefois acquit which the prosecutor moved to dismiss. The plea asserted, among other things, that the complaint for reckless driving was based upon the same acts, omissions and evidence as the indictment. The prosecutor by his motion, which is the modern counterpart of a demurrer, in legal effect admitted this statement; likewise in his brief and on the oral argument he conceded that, except for the additional proof of the death, the evidence in support of the indictment would be the same as that offered in furtherance of the reckless driving charge.
The trial court dismissed the plea and this appeal followed.
Article I, paragraph 11 of the Constitution of 1947, which follows the substance of the Fifth Amendment of the United States Constitution, provides:
"No person shall, after acquittal, be tried for the same offense."
The critical and decisive word is "same." It is only when an effort is made after acquittal to prosecute the defendant for the "same" offense, as that word has been defined in many cases, that the constitutional bar attaches.
The test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make out a single offense where two are defined by the statutes. Morgan v. Devine , 237 U.S. 632, 35 S. Ct. 712, 59 L. Ed. 1153 (1914); State v. Labato , 7 N.J. 137 (1951).
In the cases under consideration are the offenses identical in law and in fact? Would an acquittal of the one show that the defendant could not have been guilty of the other (State v. Cooper , 13 N.J.L. 361 (Sup. Ct. 1833)?
The reckless driving section of the Motor Vehicle Act, supra , says:
"A person who drives a vehicle on a highway carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others , or without due caution and circumspection, and at a speed or in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving * * *." (Italics ours.)
The statute on which the indictment is based is part of the Crimes Act and follows:
"Any person who shall cause the death of another by driving any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of ...