On appeal to the Appellate Division of the Superior Court from the Camden County Court.
For reversal -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs and Francis. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J. Wachenfeld, J. (dissenting).
November 29, 1956, in the Municipal Court of the City of Camden, defendant was convicted on a complaint charging that on the prior October 29 he did operate a motor vehicle while under the influence of intoxicating liquor in violation of R.S. 39:4-50, as amended by L. 1952, c. 286, and was thereupon fined $200 and assessed costs of $25; the fine and costs were paid forthwith and the defendant was discharged. This, on the assumption of fact that defendant was a first offender, in accordance with the frame of the complaint itself. Action was also taken to effectuate the self-executing provision of the statute that one so offending shall also, for a first offense, "forfeit his right to operate a motor vehicle over the highways of this State for a period of two years from the date of his conviction."
January 18, 1957, some 50 days thereafter, defendant "was again apprehended" and "informed that inasmuch as he had been convicted [of a like offense] in October of 1947, he was a second offender," and so was directed to appear in the municipal court on January 28, 1957 for "re-sentencing." On the day named, pursuant to a finding of a previous offense
of the same class, the court resentenced defendant, on the summary conviction of November 29, 1956, to imprisonment for a term of three months and his driver's license was declared revoked for a period of ten years, both the mandatory consequences of a "subsequent violation" of the cited section 39:4-50. The license-forfeiture provision is couched in the same terms as for a first offense; only the period of revocation is different. There is no provision for a fine; the statute directs imprisonment only for a "subsequent violation."
The earlier breach of the act is admitted; and it seems to be the fact that this offense did not become known to the municipal court until sometime after the conviction of November 29, 1956 and sentence thereunder.
The County Court affirmed the judgment of the municipal court as thus revised; and we certified defendant's appeal to the Appellate Division, on our own motion.
No question is made as to the modus operandi in subjecting the offender to the consequences of a "subsequent" violation of the act. The proceeding concerns a punitive offense, quasi-criminal in nature; and there is the same regard here as in strictly criminal cases for the essential civil rights and liberties designed to secure the individual against arbitrary action. State Board of Forest Park Reservation Commissioners v. McCloskey, 87 N.J.L. 470, 476 (Sup. Ct. 1915); State v. Rodgers, 91 N.J.L. 212 (E. & A. 1917); Watt v. Wallerius, 99 N.J.L. 370 (Sup. Ct. 1924); State v. Rosenblum, 100 N.J.L. 240 (Sup. Ct. 1924), affirmed 102 N.J.L. 125 (E. & A. 1925); State v. Rowe, 116 N.J.L. 48 (Sup. Ct. 1935), affirmed 122 N.J.L. 466 (E. & A. 1939); Kruttschnitt v. Hagaman, 128 N.J.L. 246 (Sup. Ct. 1942); Sharkey v. Wilkinson, 133 N.J.L. 176 (Sup. Ct. 1945). A quasi-crime in its early technical sense is "the act of doing damage or evil involuntarily"; in its enlarged usage it embraces all offenses not crimes or misdemeanors, but in the nature of crimes; the prefix to the noun signifies resemblance, in a certain sense or degree; a class of offenses against the public "which have not been
declared crimes, but wrongful against the general or local public which it is proper should be repressed or punished by forfeitures and penalties." Wiggins v. City of Chicago, 68 Ill. 372 (Sup. Ct. 1873). Compare State v. Snure, 29 Minn. 132, 12 N.W. 347 (Sup. Ct. 1882). The word "crime" does not include "certain quasi-criminal acts or 'offenses'" such as e.g., the violation of municipal ordinances "where the act is not made a crime by the general law of the state or by virtue of authority delegated by the state to the municipal corporation"; at common law, independent of statute, "punishments for the violation of municipal ordinances are treated as civil actions"; the imprisonment is not deemed to be punishment but rather the means of coercing the payment of the fine. 14 Am. Jur., Criminal Law, sections 2, 9; Annotation, 33 L.R.A. 33; 48 L.R.A. (n.s.) 156.
"Quasi-criminal" is not an empty label. The classification is in no sense illusory; it has reference to the safeguards inherent in the very nature of the offense, the punitive quality that characterizes the proceeding, and the requirements of fundamental fairness and essential justice to the accused.
The basic rule is that where the repetition of criminal action renders the accused liable to different and greater punishment, the subsequent offense is treated as a first offense unless the earlier crimes are included in the specification of the offense laid and proved on the trial; the usual practice is to allege the prior convictions in the indictment and to submit the factual issue thereby arising to the jury; and this course is a sine qua non save where the statute makes other adequate provision for the inquiry. The procedure is rooted in the fundamental common-law principle that in penal proceedings the accused shall be clearly informed of the charge he is called upon to meet; and this of necessity involves the elements of aggravation which under the statute enlarged the grade of the crime by enhancing the punishment. State v. Lutz, 135 N.J.L. 603, 605 (Sup. Ct. 1947). To the same effect: State v. Burns,
Here, the statute itself, section 39:4-50, provides that one who has been convicted of a previous violation of the section need not be charged as a second offender in the complaint in order to render him liable to the punishment laid down for a second offense. Nevertheless, it is a basic principle of procedural jurisprudence that the accused be given, before sentence as for a second offense, notice and an opportunity to be heard as to the commission of the prior offense made a precondition to the greater punishment provided for its repetition.
But it is urged that "[a]fter the defendant has completely executed a sentence which was validly imposed upon him as shown by the record of the case, the power of the court over [the] sentence is exhausted"; and this was so here when the sentence as for a second offense was imposed.
The Attorney-General, on the other hand, contends that a person "illegally sentenced as a first offender under R.S. 39:4-50 may, under the authority of R.R. 8:7-11, be resentenced as a second offender even after the commencement of the execution of his illegal sentence"; and that although an "illegal sentence can be corrected even after it has been completely executed," here the original sentence had not been served when it was enlarged in that "only two months of [defendant's] two-year driver's license suspension had elapsed at the time of his resentencing," and "even absent a formal resentencing, the Director of the Division of Motor Vehicles may revoke a driver's license in accordance with the statutory mandate despite the trial court's failure to do so," citing MacKinnon v. Ferber, 16 N.J. Super. 390 (App. Div. 1951), certification denied 8 N.J. 613 (1952).
It was the rule at common law from early times that in criminal cases the record of the court was subject to amendment at any time during the term in which the judgment was rendered, and the practice in this regard included revision of the sentence during the term, but not to impose a new and different sentence increasing the punishment after
the execution of the sentence had begun, even during the term. A judgment so providing is void at common law, and the original judgment remains in force. Commonwealth v. Weymouth, 2 Allen (Mass.) 144 (Sup. Jud. Ct. 1861); Commonwealth v. Foster, 122 Mass. 317 (Sup. Jud. Ct. 1877); Fine v. Commonwealth, 312 Mass. 252, 44 N.E. 2 d 659, 145 A.L.R. 392 (Sup. Jud. Ct. 1942); Brown v. Rice, 57 Me. 55 (Sup. Jud. Ct. 1869); United States v. Benz, 282 U.S. 304, 51 S. Ct. 113, 75 L. Ed. 354 (1931). This doctrine is founded in the common-law and constitutional right against double punishment for the same offense. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872 (1874). See Article I of the 1947 State Constitution, as read in State v. Labato, 7 N.J. 137 (1951).
In Lange, Mr. Justice Miller said: "If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense"; in civil cases, the principle is expressed by the maxim that "no man shall be twice vexed for one and the same cause," and in the criminal law, by the precept that "No one can be twice punished for the same crime or misdemeanor"; the common law "not only prohibited a second punishment for the same offense, but it went further and forbid a second trial for the same offense, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted"; hence, the plea of autrefois acquit or autrefois convict is a good defense; the ancient common law, as well as Magna Charta itself, provided that "one acquittal or conviction should satisfy the law," citing Commonwealth v. Olds, 5 Litt. 137 (Ky. Ct. App. 1824), and our own State v. Cooper, 13 N.J.L. 361 (Sup. Ct. 1833). It was inquired:
"For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? * * * It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence ...