Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.
On November 29, 1951 the Monmouth County grand jury returned indictment No. 6004 charging defendant Midgeley and two others with the burning of a certain dwelling house of one Aaron Shurman in Long Branch, in violation of R.S. 2:109-1. Other disposition having been made as to the other two defendants, Midgeley was brought to trial on December 15, 1952. A jury was impanelled and sworn and the prosecutor presented his evidence. At the close of the State's case defendant moved for a judgment of acquittal on the ground that the State had failed to prove that the building allegedly burned was a dwelling house. The proofs were that the building in question had not been occupied for a period of two years. The court thereupon granted the motion and ordered entry of judgment of acquittal (Rule 2:7-7(b), now R.R. 3:7-6), stating to the jury that had the indictment been drawn under two other sections of the law pertaining to the burning of buildings, namely R.S. 2:109-2 or 2:109-3, the motion would not have been granted and the case would have been left to the jury to determine.
Thereafter the grand jury, on January 29, 1953, returned indictment No. 6363 charging Midgeley with burning a certain building, described as an unoccupied dwelling house, of one Aaron Shurman, in violation of R.S. 2:109-3(b).
It is conceded that both indictments embrace the identical series of acts and involve the identical burning of the same building on the same date. They differ only in the citation of the statute alleged to have been violated and in the description of the specific building burned. Defendant filed a plea of autrefois acquit to the second indictment. Following oral argument, the trial judge on June 5, 1953 filed his conclusions dismissing indictment No. 6363 and holding, on the authority of State v. Cooper , 13 N.J.L. 361 (Sup. Ct. 1833), State v. Di Giosia , 3 N.J. 513 (1950), and State v.
Labato , 7 N.J. 137 (1951), that defendant was in double jeopardy, contrary to the provisions of N.J. Const. 1947, Art. I, par. 11. The State appeals. Rule 2:5-3(b)(7), now R.R. 3:5-5(b)(7).
The appeal is dated June 9, 1953 and is mistakenly taken from the conclusions of June 5, 1953 instead of from the judgment thereafter entered on June 30 and filed July 7, 1953. The fact that the appeal was prematurely taken is of no consequence. Cf. In re Kershner , 9 N.J. 471 (1952).
The definition, nature and history of double jeopardy have been expounded in countless cases and numerous texts. It is an ancient doctrine rooted in the common law and finding its reflection in the express provisions of constitutions, both federal and state. The principle was secured by the successive constitutions of New Jersey. State v. Cooper , 13 N.J.L. 361, 370 (Sup. Ct. 1833); State v. Di Giosia , 3 N.J. 413, 418 (1950); State v. Labato , 7 N.J. 137, 143-144 (1951); 22 C.J.S., Criminal Law , §§ 238, 239, pp. 368-372; 15 Am. Jur., Criminal Law , §§ 359, 360, pp. 38-40; 1 Wharton, Criminal Law (12 th ed. 1932), § 395, pp. 538 et seq.
The acquittal obtained on defendant's motion at the close of the State's case on the trial of the first indictment was for variance between the proofs and the charge set out in the indictment. The variance was material and fatal. The question presented on this appeal is, therefore, whether trial on the second indictment would place defendant in double jeopardy. This involves the more basic issue as to the time or stage of the prosecution at which jeopardy attaches.
Just when a person accused is first put in jeopardy at a trial on a charge of committing a crime is a question upon which the authorities are not agreed. 1 Wharton, Criminal Law (12 th ed. 1932), §§ 395, 397, pp. 546-567. Different courts have taken extreme positions. In some jurisdictions it has been held that where a demurrer to an indictment has been sustained, the accused has been in jeopardy and may not be tried again for the same offense on a second indictment. Other courts have held that jeopardy does not attach until the case has been tried once upon a valid indictment
and finally disposed of by the appellate court, after full opportunity for a hearing on appeal. The general rule has been stated to be that when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned and has pleaded, and a jury has been impanelled and sworn, he is in jeopardy. 22 C.J.S., Criminal Law , § 241, p. 375; 15 Am. Jur., Criminal Law , § 369, p. 46. However, the rule has been modified in cases of a material variance between the allegations of the indictment and the proof. Although such a variance entitles the accused to an acquittal on the particular indictment, it has been held that he is still liable to be tried for his crime.
"* * * if accused is acquitted by direction of the court on the ground of material variance, he cannot plead the acquittal as a bar to a second prosecution for he has never been in jeopardy, and when tried on a new indictment the crime then alleged is not the same crime as in the former indictment." 22 C.J.S., ...