Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Defendant, Lacy Oats, appeals from a refusal to set aside a judgment of conviction entered on an indictment for conspiracy. He raises three questions: whether there was a merger between this indictment, by which he and Daniel York are charged with a conspiracy for the sale of narcotics, and another indictment against Oats alone for the actual sale of heroin; whether Oats was put in double jeopardy by the two indictments; and whether the acquittal of York of the above-mentioned charge of conspiracy, subsequent to a plea of non vult entered by Oats to that charge, calls for the vacation of the judgment thereon against Oats.
The conspiracy indictment, after charging Oats and York generally with a conspiracy for the sale of narcotics, contained an allegation that in furtherance of that conspiracy Oats was urged by York to make a sale to Alton Brooks of heroin and thereupon made the sale September 2, 1952. The other indictment also charged Oats with the sale to Brooks that day.
Other circumstances, apparently undisputed, are set out in the briefs. On April 23, 1953 Oats retracted a plea of not guilty to these two indictments and to two indictments for the sale of narcotics to other persons and entered a plea of non vult to the four indictments. On the same day York went on trial alone upon the indictment for conspiracy and on April 29 was acquitted by a jury. Oats was sentenced
May 15 on the four indictments, receiving consecutive sentences thereon.
On April 1, 1954, ten and a half months later, Oats made the motion, out of which this appeal arises, seeking to have set aside the judgment on the conspiracy indictment. At the oral argument before us his counsel asked us to treat the motion as an application for a writ of habeas corpus. But Oats is now serving a term of imprisonment imposed by another judgment. One can invoke that writ only to attack the judgment by which he is presently confined. In re Kershner , 9 N.J. 471, 474 (1952); Jablonowski v. State , 29 N.J. Super. 109, 114 (App. Div. 1953).
Without stopping to discuss the various proceedings and motions (of which nothing is said in the briefs) by which a judgment of conviction may be set aside, we may say we are satisfied that there is no basis for redress here except under R.R. 3:7-10(a). That rule, after first stating in terms admitting of no exception, that a plea of guilty or non vult may be withdrawn only before sentence or before the suspension of sentence, then opens up one means of grace, thus:
"* * * but to correct manifest injustice, the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea as provided by law."
What is meant by the phrase "as provided by law" is not clear to us. Cf. N.J.S.A. 2:190-16, repealed L. 1951, c. 344; State v. Tolla , 73 N.J.L. 249 (Sup. Ct. 1906). At any event, a motion under this rule is addressed to the discretion of the court. State v. Pometti , 12 N.J. 446 (1953).
We come then to the first of the meritorious questions. The indictment for the offense of conspiracy did not in this case merge into the indictment for the substantive offense. Pinkerton v. United States , 328 U.S. 640, 643, 66 S. Ct. 1180, 90 L. Ed. 1489 (1945); State v. Simon , 113 N.J.L. 521, 525 (Sup. Ct. 1934), affirmed 115 N.J.L. 207 (E. & A. 1935); Johnson v. State , 29 N.J.L. 453 (E. & A. 1861);
37 A.L.R. 778; 75 A.L.R. 1411. The two offenses are separate and distinct, State v. Chevencek , 127 N.J.L. 476 (Sup. Ct. 1941), and, we may deduce, are therefore both punishable. American Tobacco Co. v. United States , 328 U.S. 781, 788, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946); Pinkerton v. ...