On motion to dismiss indictment.
[30 NJSuper Page 182] This is a motion to dismiss an indictment for robbery on the ground that it imposes double jeopardy. The problem involves a prior indictment against this defendant and one Cyril Deady, for murder, the first trial of which resulted in a finding of both defendants "guilty as charged with a recommendation of life imprisonment."
The conviction was reversed by the Supreme Court because of the jury's failure to state in the verdict the degree of murder found. State v. Greely , 11 N.J. 485 (1953). Upon a retrial both defendants were acquitted. Shortly thereafter the present indictment for robbery was returned against them. Greely, who moves for its dismissal, was rearrested and is confined in the county jail awaiting trial. The defendant Deady is still at large.
The indictment for murder charged pro forma that the accused on the 8th day of November, 1951, in the City of Hoboken, did willfully, feloniously and of their malice aforethought kill and murder one Selacius Klein. Particulars served by the State on defendants' demand specified the charge to be that the homicide was "done in the commission of a robbery," thus making it exclusively one of murder in the first degree within the provisions of R.S. 2:138-2, now N.J.S. 2 A:113-2. (Appendix in State v. Greely, supra.) The theory of the prosecution and the import of its proofs in each trial were strictly in keeping with the charge so made. The indictment now in question charges in the usual form that the said Greely and Deady on the 8th day of November, 1951, in the City of Hoboken, did commit the crime of robbery upon Selacius Klein, forcibly taking from his person the sum of $18 in lawful money. It is not disputed that the victim and the accused named in both indictments are the same persons. And all additional facts needful to establish the offense charged in the present indictment as one and the same with the robbery charged under the murder indictment, have been demonstrated beyond question by the oral argument, certified transcript of which, by direction of the court, has been filed with the clerk as part of the record in the case.
While according to the text of the motion to dismiss, it is grounded specifically upon the former acquittal, in reality it comprehends the broader ground of former jeopardy, and so includes not only the second trial for murder but both trials together. And the principle of res judicata is also involved, State v. Labato , 7 N.J. 137, 144 (1951).
Does the indictment sub judice put defendant in jeopardy for the second time for the same offense? I think it cannot be denied that it does. By reason of the robbery charged against him in the former indictment as particularized, and in the proofs adduced thereunder in the murder trials, he has been placed in jeopardy of a conviction of first degree murder, and equally of a conviction for robbery, as will be seen. Now the charge of robbery as made in the indictment before us puts him again in jeopardy of a conviction for robbery, the same robbery. The quality of the situation is emphasized in the fact that the same proofs would be made by the State in a trial of the pending indictment as have already been made in the murder trials, not excluding proof of the homicide as a measure of the force and putting in fear essential to robbery, and including, doubtless, the admissions made by this defendant as a witness in his own behalf on the former trials, all of this notwithstanding the prior acquittal.
The immunity invoked on this motion is fundamental in our law, and implemented by a basic delimitation upon the State's right to prosecute. "No person shall, after acquittal, be tried for the same offense." (N.J. Const. , 1947, Art. I, par. 11). In one of the leading cases, that of State v. Mowser , 92 N.J.L. 474 (E. & A. 1919), the protection against double jeopardy was effectuated so as to bar a prosecution for murder alleged to have resulted from the commission of a robbery, on the ground that the accused had previously pleaded guilty to the robbery. All the more strongly is the immunity called for in the case before us. Here the accused has been acquitted of the murder in which the robbery now charged was essentially ingredient. In other words, the prosecution of the larger and all inclusive crime has been completed. In one aspect the question is ruled by the principle of essential inclusion; in the other by the express allegational effect of the State's particulars. The mere order of events, that is whether the accused is first put in jeopardy for the whole or for the part of the total offense charged against him, can be of no moment. As it happened here to
this defendant, it is really the part that jeopardized him for the whole, a feature of the problem which cannot for a moment be overlooked. In the Mowser case, supra , it was the prosecution for the resulting homicide that the Court prohibited, while in State v. Cosgrove, infra , it was, as here, the prosecution for the lesser offense that was interdicted after that for the homicide had been disposed of, and in the latter case the crime had victimized not one person but two. The decisions in this State put it beyond question that what violates the immunity is the separation into its components, for the purpose of separate prosecution, of an episode that constitutes a single criminal act; that is, plural prosecution for a single offense. In State v. Rosa , 72 N.J.L. 462 (E. & A. 1905), the court observed, in this very connection, 72 N.J.L. , at page 464, that "it is the character of the act, not the results which flow from it, which determines the question of the guilt or innocence of the person who does it." The principle that a criminal act is strictly unitary was specifically assailed in the argument of State v. Pennsylvania R. Co. , 16 N.J. Super. 360 (App. Div. 1951); affirmed 9 N.J. 194 (1952). The Supreme Court, in the face of the State's challenge that that principle as enunciated in the Cosgrove case should be declared obsolete and overruled, reaffirmed the principle, and did so in a situation whose factual quality was extreme.
It is to be noted that a feature of the case here is the omission from the murder indictment of a count for robbery. It will be hereinafter shown, and I think by the clearly established law of this State, that the omission of an express count for robbery was of no consequence, that robbery was inherently in the case, and that notwithstanding the omission a conviction for robbery would have been valid. But passing that for the moment, it is elemental that neither the omission of a robbery count, nor the fact that defendant in the murder trial admitted complicity in the robbery, nor any ratiocinative character or detail in the medical or other questions embodied in the evidence, nor all of these together, can have the effect of permitting the court to reason the
verdict into something less than it was, that is an acquittal upon the indictment in its fullest import, and as that import is or may be enhanced by the full body of proof adduced. "It is the evidence, not the theory of the pleader, that determines the issue." State v. Labato, supra , 7 N.J. , at page 146. To put it another way, there can be nothing that will allow us, under any conceivable circumstance, to dissect an acquittal, however logically it be done, and remove from it that which we may happen at the time to believe the jury did not mean to include. We are ruled by the fullness of the jury's authority to acquit. In a criminal case a verdict of acquittal is not subject to judicial control, under any condition, being in this unlike a verdict in a civil case. It is enough to show in support of this that, notwithstanding the force and effect of the proofs in a criminal case, the court has no power to direct the jury to convict. While it is within the court's right, in a case where evidence of guilt is virtually uncontroverted, to indicate to the jury its corresponding duty in the circumstances, the fact is that any precept thus imparted is reversible error when it is such as fails to leave the jury entirely free to reject it. See State v. Seifert , 85 N.J.L. 104 (Sup. Ct. 1913), affirmed 86 N.J.L. 706 (E. & A. 1914), and State v. Swan , 130 N.J.L. 372 (E. & A. 1943). As stated recently by our Supreme Court in State v. DiGiosia, infra , 3 N.J. , at page 421: "The responsibility for the acquittal is the jury's."
Though it may be in part repetitive, another angle of view can be stated that accentuates the double jeopardy in defendant's plight. Could he, under the indictment for murder and regardless of its lack of a robbery count, have been convicted of the robbery? Most certainly he could have been, for, as already shown, a conviction for the murder would of necessity have been a conviction for the robbery, essentially and ingrediently. There simply could have been no conviction for murder without the jury's finding that defendant had perpetrated a robbery or had been in the act of doing so. In the light of the court's reasoning in State v. Cooper, infra , we shall see further how indivisibly integrated the
murder and robbery features are, and that in truth it is illusory to view them, contrary to their merger by the statute, as separate things. This, of course, is in addition to the specific peril of a ...