[38 NJSuper Page 203] This matter comes before this court by a timely motion by the defendant under R.R. 3:5-5(b)(3), to quash the indictment charging said defendant and others with conspiracy to make book. The grounds alleged in support of the motion are: (1) that the defendant has been denied due process of law; and (2) that the indictment of the defendant without a preliminary examination
on the complaint which the defendant requested, subjected the defendant to double jeopardy in violation of the Federal and State Constitutions.
The defendant has filed in support of his motion an affidavit setting forth facts which are not denied by the State.
Briefly, the agreed facts are: On August 30, 1955 the defendant was arrested and charged on a complaint in the Municipal Court of the City of Paterson with conspiracy to make book. The defendant was released on bail and upon arraignment on September 1, 1955 pleaded "Not Guilty" to the charge and demanded a preliminary examination. The matter was continued to September 2, 1955. The defendant and his counsel appeared before the magistrate on the latter date, and the examination was continued at the request of the State to September 9, 1955. On that date the defendant and his counsel again appeared before the magistrate, but there was no representative of the State present. The matter was further continued until later in the day, when the complaint was dismissed by the magistrate due to no evidence having been presented on behalf of the State. Meanwhile, on September 7, 1955 the grand jury returned the indictment to which this motion is now addressed.
As a general rule, with some modifications later discussed, the defense of former jeopardy will be available to the accused whenever he has already gained acquittal for the same offense.
Because second jeopardy is what is forbidden, it logically follows that the prisoner must have undergone initial jeopardy before he can be heard to complain of another prosecution for the same offense. Thus it becomes necessary to ascertain whether he had been, in fact, in actual jeopardy in the first prosecution and whether such jeopardy, if it existed, embraced the same identical act of commission upon which the second prosecution is based.
There must be three elements essential in the first trial, namely, that the prisoner shall have been tried in a
court of competent jurisdiction; that the evidence necessary to sustain the second charge would have been sufficient to secure a legal conviction on the first; and the acquittal must be final.
In the case at bar, no evidence has been presented to this court to show that the municipal court had actually tried the charge against this defendant on the merits, no evidence having been adduced by either the State or the defendant. A preliminary examination is in no sense a trial of a person accused of crime.
N.J.S. 2 A:8-22 limits those crimes over which the municipal courts have jurisdiction, and does not include the crime charged in this indictment. Hence it was not a court of competent jurisdiction, having jurisdiction over the subject matter.
A preliminary hearing before an examining magistrate is not a judicial trial. It is a mere judicial inquiry. No plea or issue is necessary and no jury is demandable or proper. The doctrine of res adjudicata does not apply so that the result of one inquiry ...