Eastwood, Bigelow and Francis. The opinion of the court was delivered by Francis, J.c.c. Eastwood, S.j.a.d. (dissenting).
The indictment, No. 4221, with which we are concerned here, was returned against the defendant, Janiec, by the September, 1946 term of the Monmouth County grand jury. Two counts were contained therein (although not designated as such): the first recited three previous high misdemeanor convictions and charged a fourth high misdemeanor, namely, breaking and entering a dwelling house in the Borough of Deal, Monmouth County, New Jersey, on September 19, 1945, with intent to steal the goods and chattels of one Loretta Corbally; the second count charged him with another high misdemeanor, that is, grand larceny of certain personal property of Loretta Corbally.
This was one of several indictments which had been brought against him in Monmouth County. He was tried and convicted on three of them; then, as a fourth offender, he was sentenced to life imprisonment under the Habitual Criminals Act (R.S. 2:103-10, as amended L. 1940, c. 219, p. 889, sec. 3). The sentence was reversed because he had not been tried and convicted under an indictment charging him specifically with the three previous high misdemeanor convictions,
Following one of the convictions Janiec was indicted again. This indictment, No. 4234, set forth four previous high misdemeanor convictions, the three already referred to in No. 4221, and the more recent one for robbery, and then charged as the principal offense the same grand larceny as is the subject of 4221. No. 4234 was described by the State in State v. Janiec, supra , as a "superseding" indictment.
Trial of No. 4221 resulted in a verdict of guilty of grand larceny, guilty of having been convicted previously of three high misdemeanors, and a disagreement on the charge of breaking and entering. On the basis of this result, the trial court again imposed a sentence of life imprisonment and Janiec appeals.
The argument is advanced that since, in the earlier appeal, the State described the indictment here as having been "superseded," no prosecution could be had under it. The assistant prosecutor who employed the term was called as a defense witness at the trial and he explained that by it he had not intended to indicate an abandonment or a nolle prosequi of the charge; he pointed out that both indictments, i.e. , 4221 and 4234, were open of record. It is not claimed on this appeal, nor was it argued at the trial, that any formal abandonment, dismissal or nolle prosequi had been recorded. Appellant's position seems to be that the reference to No. 4221 as "superseded" by No. 4234, coupled with the fact that 4234 likewise accuses him with being an habitual criminal as well as charging him with one of the principal offenses covered by No. 4221, accomplishes a vitiation of No. 4221. The contention is not tenable. The general and controlling rule on the subject is:
"Where not provided otherwise by a valid and applicable statute, successive indictments may be found for the same offense; and each indictment is valid, pending and the proper basis of a prosecution
where it has not been disposed of by dismissal, quashal, sustaining of a demurrer, or nolle prosequi , and jeopardy has not attached under another of the indictments." (42 C.J.S. p. 888, sec. 34; U.S. v. Strewl , 99 F.2d 474 (C.C.A. 2 1938), cert. den. 83 L. Ed. 1039, 306 U.S. 638, 59 S. Ct. 489 (1939); U.S. v. Neverson , 1 Mackey 152, 12 D.C. 152 (D.C. Sup. Ct. 1880).
Appellant contends that the life sentence was imposed erroneously. As indicated, the allegations respecting the three prior convictions of high misdemeanors appear in the first paragraph of the indictment which charges the offense of breaking and entering. He maintains therefore that he was charged as an habitual offender under this count alone; consequently, when the jury disagreed as to his guilt of breaking and entering, the verdict of guilty of grand larceny on the second count did not justify a sentence under the Habitual Criminals Act. Basically the reason for the reference to previous convictions in the indictment is to give notice to the defendant of the intention of the State to try him as a recidivist for the new or principal offense or offenses charged in the indictment and, upon conviction, to seek a sentence under the Habitual Criminals Act. State v. Lutz , 135 N.J.L. 603 (Sup. Ct. 1947). Whatever our individual opinions may be as to the fundamental fairness of proving three prior convictions (Cf. State v. Ferrone , 96 Conn. 160, 113 A. 452 (Sup. Ct. Err. 1921)) in a trial fraught with such serious consequences to the defendant, the matter is settled by State v. Lutz, supra. And under N.J.S. 2 A:85-13, which became effective January 1, 1952, a new procedure has now been created for the sentencing of repeated offenders, such procedure to be instituted after the fourth conviction and before sentence.
While it may have been better practice, where two principal offenses are set out in an indictment, to allege the three previous convictions in a separate count or to repeat the allegation in each count, the fact remains that by the recitals in the indictment he was apprised of the effort to be made by the State to seek the more severe penalty upon conviction.
At the trial the State undertook to prove the three prior convictions and the defendant, who was represented by competent court-appointed counsel, had the opportunity of challenging the proof, and his identity, as the person who had been so convicted. In the main charge the court instructed the jury that in order for the defendant to be convicted as an habitual criminal the State was obliged to prove beyond a reasonable doubt: (1) that the defendant had been convicted previously of three high misdemeanors, and (2) his guilt of breaking and entering or of grand larceny or of both offenses. However, after the jury had been deliberating for a while, they made an inquiry of the court as to whether they could bring in a separate verdict on the breaking and entering and larceny accusations. In answering the question the court said:
"I have charged you that breaking and entering is a high misdemeanor, and likewise is grand larceny. A conviction of either one of these counts will automatically , under the indictment, find him to be an habitual criminal, they all being high misdemeanors." (Italics ours.)
The effect of the word "automatically" removed, or at least it was susceptible of the interpretation in the minds of the jury that the court was removing, from their consideration the burden on the part of the State to prove beyond a reasonable doubt that the defendant had been convicted previously of three high misdemeanors; they might conclude reasonably from this statement that if they found his guilt of either of the principal offenses, without more they should find him to be an habitual criminal. This was inconsistent with the previous instruction that: "Before the defendant can be declared a habitual criminal the jury must be satisfied beyond a reasonable doubt that this defendant was not only convicted of three previous high misdemeanors but that ...