Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D. Jayne, J.A.D. (dissenting).
[32 NJSuper Page 170] Appellant Landeros was convicted by a jury under an indictment containing three counts. The first charged assault with intent to rape, the second, atrocious assault and battery, and the third, assault and battery. All of the counts stemmed from the same single occurrence involving the one complainant. Following a charge to the jury that under the proof they should decide whether "this defendant was guilty of all of" the charges "or any of
them", a general verdict of guilty was returned. Subsequently the trial court sentenced Landeros to an indeterminate term in the Bordentown Reformatory on each of the counts of the indictment. He provided, however, that the terms should run concurrently. This appeal was then taken.
The indictment was filed May 12, 1953. At the outset, attention is directed to the fact that as of January 1, 1952, assault and battery was reduced from a crime to a disorderly persons offense. N.J.S. 2 A:170-26; State v. Maier , 13 N.J. 235 (1953). Whether it should have been included as one of the counts and the jury permitted to pass upon it is not raised by appellant and in view of our determination on the whole case the problem need not be decided at this time.
Appellant urges that it was error to instruct the jury that verdicts of guilty could be returned on all of the counts because to convict a person of a particular crime and then to convict him separately on the same facts of a lesser offense which constitutes a part of the major or more serious one, would be to convict him of two or three offenses when he was guilty of one. This contention is sound and we agree that it was improper to authorize the fractionization of the criminal liability. State v. Labato , 7 N.J. 137, 145, 146 (1951); State v. Perrella , 21 N.J. Super. 550 (App. Div. 1952).
A verdict of guilt of the highest offense charged eliminates need for deliberation upon other counts charging lower offenses which are components of the higher. Such counts should be considered seriatim only in the event of progressive downward acquittals.
It does not follow from what has been said that a reversal must be ordered. The State points out that no objection was interposed to the charge as required by R.R. 1:5-1(a) and that accordingly review cannot be invoked. Appellant concedes this, but asks us to notice it, under the qualification imposed upon the rule, as a plain error affecting his substantial rights. When resort is had to the plain error rule, we are mindful of the mandate of the Supreme Court in State v. Picciotti , 12 N.J. 205 (1953), that it is designed
to permit "the appellate court to consider plain error, though not brought to the attention of the trial court, when its conscience is shocked, when it is convinced that substantial justice was not done below, and that an unjust, unconscionable result was brought about by the error or errors first raised on appeal." (12 N.J. at 211.)
In the present case, if the jury had been limited to a determination of the individual counts on the progressive basis indicated, and a general verdict of guilty had been returned without any specification with respect to counts, the verdict would have been valid and sentence could be imposed on the most serious charge, assault with intent to rape, at least so long as there was evidence in the record to support the submission of that issue to the jury for determination. Cf. State v. Dunlap , 103 N.J.L. 209 (Sup. Ct. 1927); State v. Huggins , 84 N.J.L. 254 (E. & A. 1913). That there was such evidence is not disputed.
However, since there was but one crime committed and it was improper to authorize the jury to find guilt on the individual component parts of the highest offense charged, manifestly only one sentence can be inflicted. The trial court imposed three separate indeterminate but concurrent reformatory sentences. This was manifest error within State v. Picciotti, supra , and cannot stand. The State contends that since the error affects the sentence and not the matter of guilt, the appropriate remedy is not reversal of the conviction but a remand to the trial court for the correction of sentence, under R.R. 1:5-1(c). The difficulty with the contention is that even though as the result of the application of this rule a single sentence would be imposed on one conviction, the record of three convictions would remain. Thus he would be branded as a multiple offender where his guilt was of a single crime. Under the circumstances the required remedy is a reversal of the convictions on the counts for atrocious assault and battery and assault and battery, and such will be our order.
Appellant cites also certain alleged errors in evidentiary matters and a further defect in the charge of the court.
With respect to the evidential problems, it is asserted that the court erroneously permitted (1) a State's witness to express an opinion as to Landeros' guilt, and (2) the prosecutor to inject into the trial evidence susceptible of the inference that Landeros was under arrest on a similar charge at the time he was identified as the assailant in this case.
The opinion evidence as to the accused's guilt came into the trial in this way: The State had called Captain Angelo Colacci of the Bound Brook Police Department, apparently primarily to corroborate the identification which the victim had made of Landeros in a police line-up in Elizabeth about six weeks after the assault. On cross-examination defense counsel asked:
"Q. Did you have any doubts in your mind about ...