Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The defendant has been permitted to prosecute the present appeal as an indigent person. R.R. 1:2-7; 2:2-5. By reason of that circumstance the factual structure upon which the defendant's points of appeal are to be considered is in the form of a statement of facts to which counsel for the defendant and for the State have subscribed and upon which the trial judge has endorsed his approval. R.R. 1:6-2; 2:6.
On September 20, 1950 four persons, Patsy Cascio, Louis Capezzuto, Charles Galiardo, and Elmer S. Yager were patrons in a tavern in Fairview, Bergen County, where with the display of a drawn gun the defendant and two confederates were said to have robbed them and fled. On June 26, 1951 three separate indictments were returned charging in the first count the defendant and two persons whose names were unknown with the commission of the armed robbery of Patsy Cascio (No. 17231), Louis Capezzuto (No. 17232), and Charles Galiardo (No. 17233).
It is of present significance to observe that each indictment charged the commission of the robbery upon the one victim therein designated and that there was no indictment charging the defendants with robbing Elmer S. Yager. Also of present pertinency is the circumstance that the second count of each indictment accused the defendants of the offense of carrying concealed weapons.
On May 26, 27, 1952 the defendant Hoag was tried on the three indictments above mentioned. Pursuant to the direction of the court he was acquitted of the offense of carrying concealed weapons, and the jury found him not guilty of the crime of the armed robbery of Cascio, Capezzuto and Galiardo.
On July 17, 1952 the present appellant was indicted (No. 17966) for the armed robbery on September 20, 1950 (the same occasion) of Elmer S. Yager, whom he had not been accused in the previous indictments of robbing, and again for the unlawful carrying of concealed weapons on that occasion. The trial of the defendant on this indictment on
October 18, 19, 1954 resulted in a verdict of guilty on both counts.
On November 5, 1954 the defendant was sentenced to imprisonment for the commission of the armed robbery of Yager alleged in the first count of the indictment and given a consecutive sentence of imprisonment on the second count which charged him with carrying a concealed weapon. On December 17, 1954, by reason of the former acquittal, the latter sentence was nullified by the court. The present appeal is therefore addressed to the propriety of the conviction of the defendant for robbing Yager.
The following paragraphs of the approved statement of facts are appropriately quoted:
"6. The indictment of July 17, 1952 involved the Armed Robbery of Elmer S. Yager which occurred on the same occasion, as set forth in the indictments of June 26, 1951 and the said Elmer S. Yager, the victim named in the new indictment, testified as to details of the holdup at the trial on May 26 and 27, 1952, when defendant was acquitted of the charges that he robbed Patsy Cascio, Louis Capezzuto and Charles Galiardo.
8. Prior to the trial, during the trial, and at the present time the defendant has invoked the defense of former or double jeopardy on the grounds that there was but one incident and one holdup; that all of the victims were present at the same time and place, and that the testimony of all of the victims, including Elmer S. Yager, was given at the first trial, when defendant was acquitted."
The point predominantly emphasized on behalf of the defendant is that he was subjected by the indictment of July 17, 1952 and by the trial in ...