On appeal from a judgment of the Superior Court, Appellate Division, where the following per curiam opinion was filed.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Jacobs and Brennan. For reversal -- Justices Heher and Burling.
"Appeal is taken from a trial court's denial of defendant's application to correct an alleged illegal sentence. The history of this case is fully set forth in a previous opinion of this court decided March 26, 1954. The question here considered was not disposed of in that appeal. Defendant contends that the trial judge erred in sentencing him to a term of not more than 20 years nor less than 10 years on his conviction for Indictment No. 32 in that the indictment charges different substantive crimes each requiring a separate sentence.
"Indictment No. 32 charges defendant and others with violating (1) in the first count R.S. 2:166-1 and R.S. 2:176-5 and (2) in the second count R.S. 2:110-2 and R.S. 2:176-5.
"'Any person who shall forcibly take from the person of another, money or personal goods and chattels, of any value whatever, by violence or putting him in fear, and his aiders, procurers and abettors, shall be guilty of a high misdemeanor, and punished by a fine not exceeding one thousand dollars, or imprisonment at hard labor not exceeding fifteen years, or both.'
" R.S. 2:176-5 provides in part:
"'Any person who shall commit or attempt to commit any assault, robbery, larceny, burglary or breaking and entering, when armed with or having in his possession any revolver, pistol, or other firearm, or other instrument of any kind known as a blackjack, slung shot, billy, sandclub, sandbag, bludgeon, metal knuckles, dagger, dirk, dangerous knife, stiletto, bomb, or other high explosive, shall, in addition to the punishment provided for the crime be punished on a first conviction by imprisonment for not more than five years; * * *. No such additional punishment shall be imposed unless the indictment shall have averred that the person was armed with or had in his possession any such instrument and conviction was had thereon.'
" R.S. 2:110-2 provides in part:
"'Any person who shall commit an assault with intent to * * * commit * * * robbery * * * shall be guilty of a high misdemeanor, and punished by a fine not exceeding three thousand dollars or by imprisonment at hard labor not exceeding twelve years, or both.'
"Confusion arises in the prosecutor's argument with the contention that in effect but one crime has been committed and that basically Indictment No. 32 is so limited. A reading of the two counts obviously reveals the commission of two crimes: (1) of robbery where defendant was armed and (2) of an assault upon the victim.
"The sentence record does not specify what part of the sentence is levied on the first count and what part is levied ...