On appeal from the Hudson County Court, Law Division (Criminal).
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
The only question involved on this appeal is whether the court below committed error in denying appellant's plea of autrefois acquit under the circumstances herein narrated.
The State, however, also urges dismissal of the appeal on the ground the appellant failed to prepare an adequate transcript in accordance with R.R. 1:2-8(e) or, in the alternative, to submit an agreed statement of the case pursuant to R.R. 1:6-2. Appellant has been remiss in his failure to provide an adequate record; nevertheless, the facts essential to the determination of the present case may be gleaned from the statements of both parties and the truncated record appended, and we shall, therefore, pass over the procedural irregularity to consider the appeal on its merits.
The Hudson County grand jury, at the 1953 term, returned two indictments against appellant, Irving Leibowitz, and one Harry Inberman. Indictment No. 41 charged that Leibowitz and Inberman "with a certain metal bullet fired from a firearm, did commit an assault upon one Donald M. Lochmund with intent to kill the said Donald M. Lochmund." The second indictment was identical except that the victim was alleged to be Edwin Woodson, Jr. The above indictments were consolidated and tried, resulting in a verdict of not guilty.
Thereafter, the 1953 term of the Hudson County grand jury returned indictment No. 655 against Leibowitz charging him with the unlawful concealment of a firearm in an automobile, in violation of N.J.S. 2 A:151-41. The defendant entered a written plea of autrefois acquit to this indictment, based on his previous acquittal of the offense of assault with intent to kill. The trial judge dismissed this plea on motion, and the indictment proceeded to trial.
At the trial the State offered testimony which, if believed, would establish that on September 8, 1953 Leibowitz drove a sedan up to a toll booth at the New Jersey entrance to the Lincoln Tunnel. The Port Authority policeman on duty
there had previously been warned to stop any car bearing the license number of the sedan which Leibowitz was driving. Accordingly, when Leibowitz offered his fare, the policeman directed him to turn off his ignition key and he then approached the car. As the policeman reached the car and bent over to speak to the two occupants, Leibowitz stepped on the accelerator starting the car toward the tunnel opening.
When the car had proceeded a short distance, guns appeared in the hands of Leibowitz and his companion and they began firing at the toll collector and another Port Authority policeman in the vicinity. The car sped into the tunnel, but, before reaching the New York exit, its passage was barred by a bus stopped on the roadway. The policemen, who had commandeered a truck, overtook the fugitives. When the officers advanced toward the car with drawn guns, Leibowitz surrendered. His companion, later identified as Harry Inberman, was found to be seriously wounded. The officers searched the automobile and discovered one revolver underneath a coat on the front seat and another on the floor of the car, near Inberman's feet.
Leibowitz did not take the stand in his own behalf, and the evidence offered by him consisted solely of the indictments for assault with intent to kill, upon which the State stipulated the defendant had been found not guilty. There was a further stipulation that if the sister of Inberman had been called as a witness, she would have testified that her brother, who was deceased at the time of the second trial, was left-handed.
The defendant's counsel, in his opening statement to the jury, offered the following version of what had happened on the afternoon of September 8, 1953. On the day in question, Leibowitz, who was in New York, received a call from Inberman, who told him that he was at a party in Newark and was "too tight" to drive his car. He asked Leibowitz to come to Newark and drive him back to New York. Leibowitz ...