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State v. Mark

Decided: January 14, 1957.


On appeal from the Union County Court, Law Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J. Heher, J., concurring in result.


The State appeals from a judgment of autrefois convict entered in the Union County Court in favor of the defendant.

On October 26, 1955 Albert B. Mark was arrested in the Borough of Roselle. The complaint sworn out charged him with being a disorderly person in violation of N.J.S. 2 A:170-1 in that "he did not give a good account of himself, while being in the Borough of Roselle, and while being in the aforesaid Borough was engaged in an illegal occupation and was in the Borough of Roselle for an unlawful purpose, thereby becoming a disorderly person."

On November 15, 1955, in the Roselle Municipal Court, the defendant pleaded guilty to the charge made. Before imposing sentence, the magistrate was informed by police active in the prosecution of the case that Mark had been arrested for the possession of obscene material in his car

The pornographic articles, moving pictures, books and playing cards, were physically present in the courtroom but had not been marked in evidence because the plea of guilty entered by the defendant avoided the necessity for a trial.

The magistrate, after considering the defendant's record of previous convictions, sentenced him to a fine of $1,000 and a year in jail. Subsequently, the jail term was suspended and the defendant put on probation for a year.

On December 6, 1955, the grand jury of Union County returned an indictment against Albert B. Mark charging him in three counts with the possession of obscene and indecent moving picture films, books and pamphlets, and packs of playing cards with "intent to utter and expose the same to the view of another * * * contrary to the provisions of N.J.S. 2 A:115-2 * * *."

The defendant moved to quash the indictment upon the ground that he had already been convicted of the same offense in the Municipal Court of the Borough of Roselle and, under the doctrine of autrefois convict, would therefore be placed in double jeopardy. He offered in support of his motion the affidavits of himself and his former attorney attesting to the circumstances of the prior conviction.

This motion was denied and the defendant then sought leave to appeal to the Appellate Division. Such leave was refused upon the ground that it appeared the alleged infirmity in the indictment did not appear on its face but depended upon proof aliunde, and that no final judgment had been entered after trial. The appellate court was of the opinion that the matter should be finally disposed of before the questions sought to be raised could be entertained. The right to raise the same issues on appeal after final judgment was explicitly reserved.

On June 25, 1956 the indictment against the defendant was moved for trial. A jury was selected and sworn but immediately retired from the courtroom when the defendant moved for a judgment of acquittal upon the ground of autrefois convict. In support of his motion, the defendant produced the magistrate of the Borough of Roselle, the

chief of police and the deputy chief of police, all of whom testified to the events culminating in the plea of guilty in the municipal court. The State offered no evidence, contending the defendant's conviction in the inferior court was based upon mere possession of pornographic materials. It argued that the indictment charged a more serious and completely separate offense, possession with intent to utter or expose, and that therefore the plea was bad.

The trial judge granted the defendant's motion and entered an order of "dismissal." His determinations, expressed orally at the end of argument, revealed his conclusion to be that the defendant had been convicted of exactly the same offense in the municipal court as he was presently being charged with under the indictment. Since Mark had pleaded guilty to being in the municipality for an unlawful purpose and inasmuch as the mere possession of pornographic material is not illegal, the court reasoned he must have been convicted of the possession ...

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