On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
This case comes up from the Appellate Division by reason of a dissent filed there, and the question is whether an acquittal of reckless driving will sustain a plea of autrefois acquit to an indictment for manslaughter based on the same facts.
The defendant was charged with unlawfully causing the death of a woman "by driving an automobile carelessly and heedlessly, in wanton disregard of the rights and safety" of the victim, contrary to the provisions of R.S. 2:138-9. He entered a plea of autrefois acquit, alleging, under oath, that complaint had been made against him in the municipal court charging him with reckless driving on the same occasion and that he was tried on the charge and found not guilty.
He alleges in the plea that the indictment is based on the same facts as the reckless driving complaint and an acquittal of one is a bar to prosecution of the other.
The County Court struck the defense, on motion, and the Appellate Division affirmed, with one judge dissenting. 20 N.J. Super. 354 (App. Div. 1952).
The minority opinion admits, contrary to its own findings, that a former conviction or acquittal of reckless driving is not considered in most jurisdictions to be a bar to a subsequent trial for manslaughter due to the same driving, but it implies the defense of double jeopardy here is more broadly available than in many of our sister states.
Reference is made to State v. Cooper, 13 N.J.L. 361 (Sup. Ct. 1833); State v. Mowser, 92 N.J.L. 474 (E. & A. 1919); State v. Cosgrove, 103 N.J.L. 412 (E. & A. 1927); and the recent case of State v. Pennsylvania R.R. Co., 9 N.J. 194 (1952). In each of these cases, however, the trial court had jurisdiction of both the offenses charged against the accused, and the possibility of a second prosecution reflected and depended upon whether the defendant had been convicted or acquitted of another crime arising out of the same facts and circumstances.
In State v. Pennsylvania R.R. Co., supra, we reviewed and re-examined the cases in this State dealing with the plea of double jeopardy and commented upon the conflict existing in other jurisdictions. We reaffirmed the general rule that the test of the validity of the plea is the identity of the offenses involved, determined in the ordinary case by whether the same evidence will sustain both.
In the instant case, R.S. 39:4-96 makes the offense of driving an automobile "carelessly and heedlessly, in * * * wanton disregard of the rights or safety of others" a statutory violation but not a crime. It is established and defined in the Motor Vehicle Act, entitled in part "An Act providing for the regulation of vehicles, animals and pedestrians on all public roads and turnpikes * * *," and the offense of reckless driving is completed when a vehicle is operated in the manner prohibited by the statute. It is not necessary that harm to persons or property result, nor does the enactment include personal injury or death. The
regulation, as stated in its title, is designed to regulate traffic on the ...