On certification granted.
For affirmance of first conviction and reversal of second conviction -- Chief Justice Weintraub and Justices Heher, Wachenfeld, Burling, Francis and Proctor. Opposed -- None. The opinion of the court was delivered by Wachenfeld, J.
The Appellate Division affirmed two judgments of conviction entered against defendant in the Morris County Court, and we granted his petition for certification. Both convictions arise out of the circumstances attending an automobile accident in which defendant was involved. The judgments are admittedly based on mutually inconsistent findings of fact.
On the evening of March 3, 1956 Edward Emery attended a party in the company of his brother, John, and a friend, Eugene Wolf. Shortly before 11:00 P.M. the three boys
left the party to, according to Edward's testimony, drive to a diner for some coffee.
At approximately 11:05 P.M. the automobile in which they were traveling struck two pedestrians who were walking along Mountain Lakes Boulevard in the Borough of Mountain Lakes. One of the pedestrians was killed. All of the occupants of the car stated to the investigating police that Edward Emery had been driving when the accident occurred.
On March 17, 1956 Edward, John and Eugene retracted their original stories and informed a state motor vehicle inspector that, in fact, John Emery had been the driver of the vehicle at the time of the accident. Thenceforth, they steadfastly adhered to this version. Nevertheless, Edward was charged with violating the Motor Vehicle Act, R.S. 39:4-50, by driving, on the occasion in question, while under the influence of intoxicating liquor, and he was convicted of this infraction in the Mountain Lakes Municipal Court on May 9, 1956. He immediately filed a notice of appeal to the County Court.
Before Edward's appeal was heard, the Morris County grand jury, on October 11, 1956, returned an indictment charging, in the first count, him, John and Eugene with conspiring to obstruct justice by falsely stating that Edward had been the driver of the automobile and, in the second count, charging the same three with the formulation of a conspiracy to obstruct justice by falsely stating John had been the driver. An indictment was also handed down against Edward for causing death by careless driving.
On October 19, 1956, after trial de novo on the record, the Morris County Court confirmed Edward's conviction in the municipal court of driving while under the influence of intoxicating liquor, and Edward subsequently appealed to the Appellate Division.
Eugene Wolf and Edward were brought to trial on the conspiracy indictment on December 3, 1956. John was not tried since he was under the age of 18 years. On December 5, 1956 a jury, sitting in the Morris County Court, found Edward and Eugene guilty of conspiring to obstruct justice
by falsely stating that Edward had been driving the automobile when the accident took place. Edward and Eugene were acquitted on the second count of the indictment. Thus, at this point in the various proceedings, the County Court had convicted Edward of driving while under the influence and the jury had convicted him for agreeing to state untruthfully that he was the driver of the car -- two wholly inconsistent factual determinations.
Edward did not appeal from the conspiracy conviction until the prosecutor brought its existence to the attention of the Appellate Division on the appeal of the drunken driving conviction. The Appellate Division then suggested the former judgment be brought up for simultaneous review with the latter, and this was done. Although invited to do so by the lower appellate tribunal, defendant declined to argue that the second conviction was invalid on the grounds of res adjudicata or collateral estoppel. The Appellate Division did not discern any merit in the contentions actually advanced by defendant and, accordingly, it affirmed both convictions, saying:
"We have carefully examined the points of appeal urged in the brief and argument on the appeal from the conviction on the conspiracy indictment, and, for reasons which we shall set forth, find no merit in any of them. The one substantial basis for an argument for reversal, that the verdict upon which judgment of conviction was entered was barred on principles of res judicata arising from the contrary determination of fact implicit in the statutory conviction, is beyond our purview, because the defendant deliberately declined to make the point, although specifically invited by the court to do so at and prior to the oral argument. In the interests of avoiding an injustice the court was willing to overlook the fact that the plea was not made at the trial, see State v. Meyers, 9 N.J. Misc. 1174 (Sup. Ct. 1931), affirmed 110 N.J.L. 527 (E. & A. 1933). We cannot, however, base a determination of an appeal on a ground which is not only properly objected to by the State because not urged at the trial but is expressly disclaimed by the appellant. These observations in no way imply any settled opinion on the merits of the matter of res judicata. * * *"
Defendant urges various reasons why the "drunken driving" conviction should be set aside as illegal, and we will consider them in the order in which they are advanced.
It is initially asserted the State failed to produce sufficient evidence to prove the essential elements of ...