Haneman, Price and Schettino. The opinion of the court was delivered by Schettino, J.A.D. Haneman, J.A.D. (dissenting).
This case is before us upon an order of the Supreme Court, dated January 27, 1958, remanding appellant's petition to us to consider on the merits the application for leave to appeal from a denial of a motion to vacate a sentence and to determine whether or not in fact two separate offenses were committed on the alleged day by appellant.
On April 6, 1954, appellant pleaded non vult to two accusations (No. 13 and No. 14) of breaking and entering contrary to N.J.S. 2 A:94-1, having waived indictment and trial upon the advice of assigned counsel. The appellant subsequently pleaded non vult to three indictments which do not bear upon the subject matter of this application and, in August 1954, he was sentenced upon his pleas to both the indictments and the accusations. On the accusations he received terms of from five to seven years on each accusation to be served concurrently.
Appellant first sought review of his confinement by way of motion to correct illegal sentence, which was denied by the trial court in a written opinion dated May 20, 1955. In December 1955 appellant petitioned for the issuance of a writ of habeas corpus , which was likewise denied by another written opinion by the same judge. Appellant's letter to Chief Justice Vanderbilt refers to two appeals in forma pauperis , the first dated January 7, 1956 to the Appellate Division and the second dated January 13, 1956 to the Supreme Court, which were allegedly denied without opinion but which are nowhere in evidence in the record. It is also alleged that the United States Supreme Court denied certiorari on April 23, 1956, 351 U.S. 914, 76 S. Ct. 706, 100 L. Ed. 1448. Then, on May 22, 1956, the United States District Court also denied appellant's petition for
a writ of habeas corpus and on June 8, 1956 that same court denied the issuance of a certificate of probable cause for appeal.
Thereafter it is not entirely clear as to what procedure the petitioner followed, although it appears that he first sent copies of his petition and denial to the Hudson County Habeas Corpus Advisory Committee, which treated them as an application for assignment of counsel. On April 9, 1957 the assignment judge returned defendant's petitions to vacate sentence, and on May 1, 1957 the Appellate Division likewise returned the petitions. Finally, the petitioner sent three copies of his motion to correct the allegedly illegal sentence to the Supreme Court with a letter addressed to the late Chief Justice Vanderbilt. The above referred to order of January 27, 1958 followed.
The first matter which we consider is the factual question as to whether appellant committed two separate offenses on the same day. There can be no doubt that he did. The complaints and warrants of the municipal court indicate that he did. The first complaint stated:
"that Andrew McDonald alias James F. O'Brien residing at 95 West 46th Street, Bayonne, New Jersey, on March 6th 1954, at 2:15 a.m. in Jersey City, Hudson County, New Jersey did with force and arms and felonious intent break and enter into the premises at St. John's Convent, 3042 Hudson Boulevard, Jersey City, N.J. the property of St. John's Roman Catholic Church, 3042 Hudson Boulevard, Jersey City, N.J." (Emphasis added.)
The second complaint stated:
"that Andrew McDonald alias James F. O'Brien residing at 95 West 46th Street, Bayonne, New Jersey, on March 6th, 1954, at 3:00 a.m. in Jersey City, Hudson County New Jersey did with force and arms and felonious intent break and enter the premises at St. Paul's Convent, 20 Greenville Avenue, Jersey City, N.J., the property of St. Paul's Roman Catholic Church, 20 Greenville Avenue, Jersey City, N.J." (Emphasis added.)
In his statement to the police on March 16, 1954 appellant stated he first broke into St. John's Convent and thereafter
into St. Paul's Convent. The transcript of his plea to accusations No. 13 and No. 14 shows that he admitted in open court to two separate acts on the same day. At the time appellant appeared for pleading he was represented by a competent and experienced lawyer in the field of criminal law. The stenographic transcript of the proceedings of that day contains the following colloquy between appellant's counsel, the assistant prosecutor and appellant:
"MR. MILLER [appellant's counsel]: I have gone over all of these accusations with the defendant; and with reference to 13 and 14 they are apparently identical as I read them. They allege breaking and entering into the convent building of the Sisters of St. Dominic. Now if the convent building is the building that houses the Sisters of St. Dominic I am ready to take some action in reference to these indictments. Both of them allege the same day and the same place. I can't understand now, [how] that comes about, whether they are repetitious or what.
MR. HORNSTEIN: No. He went in twice on the same day according to his own statement.
MR. MILLER: (to the defendant) Is that so?
Appellant's letter of May 31, 1954 to the Hudson County Prosecutor also admits to two acts of breaking and entering; and finally, both of the county judge's opinions, upon which the federal Judge relied, found as a fact that the appellant had committed two separate acts.
In fact, the only shadow of doubt in the entire record cast upon this factual issue arises from the accusations themselves since they fail to indicate the diverse times and the addresses of the two convents where the defendant committed his two crimes. Furthermore, the accusations failed to specify the diverse names of the two convents and in fact, one accusation was a carbon copy of the other except for the substitution of "ACCUSATION #13" for "ACCUSATION #14." Thus, they both state:
known as James F. O'Brien
Also known as James F. O'Brien HAVING BEEN CHARGED UPON OATH, BEFORE A MAGISTRATE IN THE SAID COUNTY OF HUDSON, WITH THE crime of breaking and entering with intent to steal, in violation of N.J.S. 2A:94-1,
AND HAVING IN WRITING, ADDRESSED TO THE COUNTY PROSECUTOR OF SAID COUNTY, WAIVED INDICTMENT AND TRIAL BY JURY, AND REQUESTED TO BE TRIED UPON SAID CHARGE, AND SAID REQUEST HAVING BEEN DULY REPORTED AND GRANTED:
THE COUNTY PROSECUTOR OF SAID COUNTY OF HUDSON ALLEGES THAT THE SAID Andrew J. McDonald, also known as James F. O'Brien ON six day of March IN THE YEAR OF OUR LORD ONE THOUSAND NINE HUNDRED AND fifty four, WITH FORCE AND ARMS, AT City of Jersey City IN THE COUNTY OF FORESAID, AND WITHIN THE JURISDICTION OF THIS COURT, DID Willfully and maliciously break and enter the dwelling house and convent building of the Sisters of St. Dominic with intent to steal.
CONTRARY TO THE PROVISIONS OF N.J.S. 2A:94-1 AND AGAINST THE PEACE OF THIS STATE, THE GOVERNMENT AND DIGNITY OF THE SAME.
N.J.S. 2 A:94-1 provides:
"Any person who willfully or maliciously breaks and enters, or enters without breaking, any building, structure, room, ship, vessel, car, vehicle or airplane, with intent to kill, kidnap, rob, steal, commit rape, mayhem or battery, is guilty of a high misdemeanor."
In deciding this case we examine each accusation to determine whether or not each accusation -- standing alone -- is sufficient in law. At the time he pleaded non vult on April 6, 1954, and the time he was sentenced in August 1954, he knew that he was being charged by each accusation with a different entry. The only ambiguity is the lack of specific address of the dwelling house and convent building of the Sisters of St. Dominic. But no such requirement is found in the statute. In each accusation the elements statutorily stated above are contained.
Had defendant been unaware of any fact necessary for his defense, he had other courses available. True, an indictment must allege "the essential facts constituting the offense charged." This ancient rule is expressed in R.R. 3:4-3. See also State v. Solomon , 97 N.J.L. 252, 257 (E. & A. 1921); State v. Torrance , 41 N.J. Super. 445 (App. Div. 1956), certification ...