On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For reversal -- Justices Heher, Jacobs and Brennan. The opinion of the court was delivered by Wachenfeld, J. Heher, J. (dissenting). Mr. Justice Jacobs and Mr. Justice Brennan join in this opinion.
At about 3 P.M. in the afternoon of September 20, 1950, three or four patrons, one of whom was Elmer S. Yager, were seated at the bar of Gay's Tavern on Bergen Boulevard in Fairview, New Jersey, sipping beer and observing a telecast of a baseball game. The tranquility of that scene was interrupted by three men, each carrying a gun, entering through the front door of the tavern. One of them brusquely announced: "This is a stick-up, everybody line up against the wall." The patrons, together with the owner of the tavern, proceeded to do as they were told, accelerated by slaps and shoves administered by the stick-up men. Once lined up against the wall, each was relieved of his valuables and money and then taken into the kitchen. They were placed upon the floor, their hands and legs being bound. Their mission accomplished, the robbers left the tavern and made a get-away unimpeded.
The not uncommon factual pattern recited above gives rise, on this appeal, to an arresting question of law growing
out of legal proceedings subsequently taken against the defendant who the jury below was satisfied beyond a reasonable doubt was one of the robbers.
Within a matter of weeks after the robbery, the victims were shown photographs of criminals known to have engaged in activities similar to those described above. Two of the victims identified the photograph of one man, the present defendant, as one who had engaged in the robbery. About a year later, the defendant was apprehended by the New York police authorities for another offense and returned for prosecution here.
Subsequently, the Bergen County grand jury returned three indictments, each containing two counts, against the defendant, the first count being for armed robbery of a specific individual and the second count for carrying a concealed weapon. For some reason, which does not appear in the record before us, no indictment was returned against the defendant for having committed armed robbery upon Elmer S. Yager; the victims named in the indictments were limited to Patsy Cascio, Louis Capezzuto, and Charles Galiardo.
On May 26 and 27, 1952, trial was had on the three indictments, and each of the three indictment-victims, Cascio, Capezzuto and Galiardo, was called to the witness chair by the State. However, on the stand they either disclaimed ability to identify the defendant or positively identified him as not having been one of the robbers. Each of these three witnesses recanted his prior positive identification of the defendant made through the use of his photograph. The State was able to produce only one witness, Yager, who gave an unqualified identification of the defendant at the trial.
The defense was an alibi, but it was unsupported by any witness other than the defendant.
The trial court, after dismissing the concealed weapon counts of the three indictments, submitted the case to the jury, which returned a verdict of not guilty.
Probably stimulated by the trial judge's comment as to the obvious guilt of the defendant, referred to in the appellant's brief, the Bergen County grand jury, within a matter of days after the acquittal, returned a two-count indictment against the defendant charging him, in the first count, with the commission of armed robbery upon Elmer S. Yager, and in the second count with carrying a concealed weapon in violation of N.J.S.A. 2:176-41 (now N.J.S. 2 A:151-41).
However, before the new indictment could be moved for trial, the defendant was returned to New York for incarceration for an offense committed within that jurisdiction. As a result, the trial of the Yager indictment did not get under way until October 18, 1954.
At the second trial, the State offered only one witness, Yager, who again positively identified the defendant as one of the three robbers who had entered the tavern on September 20, 1950 and held him up. After the defense had attacked Yager's ability to recall places and incidents occurring more than four years previously, on redirect examination he was asked how he could remember the defendant on the afternoon of September 20, 1950. He replied impressively: "Anybody would have a gun stuck into them, they would sure remember the fellow's face, directly in front."
The other three victims of the robbery testified on behalf of the defendant at the second trial. Their testimony was similar to that which they had given at the first trial. The defendant took the stand in his own behalf and again offered an alibi defense. No witnesses were offered to support this defense, he having testified they were unavailable by reason of death or unknown whereabouts.
The jury returned a verdict of guilty on both counts of the indictment. Following sentencing, the concealed weapon count was ordered dismissed by the trial judge.
The defendant was permitted to appeal to the Appellate Division as an indigent person from the judgment of conviction on the first count of the indictment. As on the appeal to this court, no question was there raised as to the
defendant's guilt or innocence, the appeal being limited solely to the question whether the second trial, on the Yager indictment, violated our constitutional prohibition against double jeopardy, a defense which the defendant had also raised at the trial. The Appellate Division affirmed, State v. Hoag, 35 N.J. Super. 555 (App. Div. 1955), and the defendant appealed to us as of right, see R.R. 1:2-1(a), and as an indigent person pursuant to R.R. 1:2-7. The appeal was originally considered without oral argument; subsequently we assigned counsel to the defendant. New briefs were presented and counsel argued the cause before us at length.
The constitutional question is advanced here by the defendant in the following form: "The basic issue in this case is whether the State may subject an individual to a separate trial for the robbery of each victim when the robbery of all was at the same time and at the same place."
The New Jersey Constitution of 1947 states the prohibition against double jeopardy in the same language as did the 1844 Constitution:
"No person shall, after acquittal, be tried for the same offense." N.J. Constitution, Art. I, par. 11. See N.J. Constitution of 1844, Art. I, par. 10.
The difficulty, of course, lies in ascertaining what is meant by the constitutional concept of "the same offense," acquittal, or conviction, of which will preclude a second trial. The question has arisen in many contexts, as, for example, where a person accused of a minor offense is acquitted and he is again charged on the same facts in a more aggravated form. See State v. Labato, 7 N.J. 137, 146 (1951); State v. Shoopman, 11 N.J. 333 (1953); State v. Cooper, 13 N.J.L. 361 (Sup. Ct. 1833); State v. Mowser, 92 N.J.L. 474 (E. & A. 1919). Double jeopardy may also be called into play where a single act involves multiple consequences, usually the consequences being experienced by a number of individuals. See State v. Cosgrove, 103 N.J.L. 412
(E. & A. 1927); State v. Pennsylvania R.R. Co., 9 N.J. 194 (1952).
The test most widely employed in this jurisdiction to resolve the double jeopardy question in such circumstances is whether the evidence necessary to sustain the second indictment would have been sufficient to secure a legal conviction on the first. State v. DiGiosia, 3 N.J. 413, 419 (1950); State v. Labato, supra, 7 N.J., at page 144; State v. Shoopman, supra, 11 N.J., at page 335.
The defendant acknowledges that the application of the "same evidence" test results in a denial of the alleged double jeopardy violation in the case sub judice. For the evidence needed to support the Yager indictment obviously would not have been sufficient to secure conviction upon the three earlier indictments, inasmuch as the latter indictments charged a forcible taking of different property from three different individuals.
Nevertheless, it is urged the present factual pattern falls within the "single act" category, and despite the fact several persons were robbed, but a single "offense," in the constitutional sense, was committed by the defendant for which he may not be retried. It is said the "same evidence" test is modified in this jurisdiction where there are multiple victims of a "single act." See State v. Cosgrove, supra; State v. Pennsylvania R.R. Co:, supra.
However, we cannot concede that the defendant may avail himself of the plea in this case under any recognized concept of double jeopardy. For the fact remains that there was not but a "single act" committed by this defendant which simultaneously, and without more, affected several individuals. At the very least, putting aside the more subjective element of placing each of the victims in fear, the crime with which the defendant was charged in each indictment required the commission of a separate and independent act with respect to each victim, i.e., the forcible taking of the victim's property. Additionally, to be precise, it was in fact committed at a different time, either prior or subsequent to the other independent acts charged in the other indictments. As was
said in People v. Lagomarsino, 97 Cal. App. 2 d 92, 217 P. 2 d 124, 129 ...