For reversal -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
[29 NJ Page 341] The State appealed to the Appellate Division from an order dismissing indictment No. 475 which the grand jury of Hudson County (1954 term -- second session) had returned against the defendant Max H. Roller. We certified the appeal on our own motion. See R.R. 1:10-1(a).
In 1949 the defendant was transferred from Dickinson High School, where he was listed as a teacher of history, to the accredited evening high school. Thereafter he was carried on the records of the evening high school as a duly qualified teacher and received monthly net salary checks from the Board of Education of Jersey City. Indictment No. 475 charged that from August 1951 to March 1954 the defendant never appeared or performed any services or duties whatever as a teacher at the evening high school but obtained monthly payments from the board of education by fraud or false pretenses, contrary to N.J.S. 2 A:111-1. The indictment contained 32 counts, each of which related to a separate gross monthly salary payment, and the total amount alleged to have been received by the defendant from August 1951 to March 1954 was in excess of $15,000. When the grand jury returned indictment No. 475 it also returned indictment No. 476 which charged that the defendant had willfully and unlawfully obtained negotiable instruments from the Board of Education of Jersey City by falsely representing that he was performing the duties of a teacher at the accredited evening high school, contrary to N.J.S. 2 A:119-3. This indictment contained 32 counts, each relating to a monthly net salary check. At a pretrial conference the parties, through their counsel, signed an order which consolidated both indictments for trial and which stipulated that the amount received by the defendant as charged in indictment No. 475 "represents the defendant's gross pay," whereas the amount received by the defendant as charged in indictment No. 476 "represents the defendant's net pay" as evidenced by 32 checks endorsed and cashed by the defendant.
At the trial, testimony supporting the indictments was duly introduced, and at the close of the State's case the defendant moved for judgment of acquittal on both indictments and, in the alternative, for an election by the State as to whether it would proceed on indictment No. 475 or indictment No. 476. The trial judge expressed the view that the evidence was sufficient to enable the jury to find
that the defendant had received his salary by falsely pretending that he was rendering teaching services and that the motion addressed to indictment No. 475, which the trial judge viewed as primarily referring to false pretenses, should therefore be denied. However, he concluded that indictment No. 476, which he viewed as primarily referring to false representations, should be dismissed and that there was consequently no need to deal with the alternative motion that the State be compelled to elect as between the indictments. No formal order of dismissal was ever entered, but the clerk's docket entries contain a reference to the dismissal of indictment No. 476 on March 7, 1957. The trial proceeded on indictment No. 475 and the defendant introduced testimony in support of his defense that although he had received and cashed the salary checks and had never rendered the teaching services, there had been no false pretenses or representations and no criminal conduct in violation of N.J.S. 2 A:111-1. At the close of all of the testimony the defendant moved for judgment of acquittal, but his motion was denied and the case under indictment No. 475 was submitted to the jury for its determination. After deliberating for seven hours the jury was unable to agree and was discharged.
When the matter was about to be called for retrial of indictment No. 475 the defendant served notice that he would move for judgment of acquittal on the stated grounds of double jeopardy, collateral estoppel and due process. After hearing argument on the motion the trial judge concluded that there was substantial identity of charges and proof under both indictments and that since there had been a dismissal of indictment No. 476 (which he viewed as equivalent to a judgment of acquittal) the prohibition of double jeopardy precluded further prosecution of indictment No. 475. He orally announced his dismissal of indictment No. 475 on February 3, 1958, but his formal order of dismissal was not entered until February 17, 1958. On May 9, 1958 the State filed notice of appeal to the Appellate Division and in due course the defendant served notice of motion
to dismiss the appeal. After certifying the appeal, this court ordered that the motion to dismiss be held for argument and consideration with the appeal.
The common law properly concerned itself with the protection of the defendant from governmental harassment and oppression by repeated prosecutions for the same wrongful conduct. It formulated the principle cherished by all free men that no person may be twice put in jeopardy for the same offense, a principle which has continued undiminished in force and which has found firm expression in the Federal Constitution as well as the constitutions of most states. See Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2 d 199, 61 A.L.R. 2 d 119 (1957); State v. Labato, 7 N.J. 137 (1951); Roberts, "Double Jeopardy Reappraised," 7 Buffalo L. Rev. 461 (1957). Unlike the broader double jeopardy language of the Fifth Amendment, New Jersey's Constitution provides that no person shall, after acquittal, be tried for the same offense. See Const. 1844, Art. I, par. 10; Const. 1947, Art. I, par. 11. The reports of the 1844 Constitutional Convention indicate that our phraseology was used to insure against the contention that a defendant may be entitled to immunity from further trial where his first trial ends, not in acquittal, but in a jury disagreement or comparable indecisive disposition. See City of Newark v. Pulverman, 12 N.J. 105, 110 (1953). It is now well-settled that in our State a prosecution which has resulted in a jury disagreement may be continued on a retrial without in anywise infringing upon the defendant's rights. See State v. Block, 119 N.J.L. 277 (Sup. Ct. 1938), affirmed 121 N.J.L. 73 (E. & A. 1938); State v. Van Ness, 82 N.J.L. 181 (Sup. Ct. 1912), affirmed 83 N.J.L. 801 (E. & A. 1912); Smith and Bennett v. State, 41 N.J.L. 598 (E. & A. 1879). The same result has been reached under the double jeopardy clause of the Fifth Amendment. See United States v. Perez, 22 U.S. 579, 6 L. Ed. 165 (1824); Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 93 L. Ed. 974, 978 (1949); Dortch v. United States, 203 F.2d 709 (6 Cir. 1953),
certiorari denied, 346 U.S. 814, 74 S. Ct. 25, 98 L. Ed. 342 (1953); Scott v. United States, 91 U.S. App. D.C. 232, 202 F.2d 354 (D.C. Cir. 1952), certiorari denied, 344 U.S. 879, 73 S. Ct. 176, 97 L. Ed. 681 (1952), Bayne v. U.S., 344 U.S. 881, 73 S. Ct. 180, 97 L. Ed. 682 (1952).
Where a defendant has actually been tried and acquitted and the State thereafter seeks to bring him to trial again on a charge which it contends is not the same offense, more troublesome problems arise. See, e.g., the recent case of State v. Hoag, 21 N.J. 496 (1956), affirmed 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2 d 913 (1957), where four persons were robbed in the course of a holdup in a tavern. The defendant was accused of the robbery but denied that he was at the tavern or had anything whatever to do with the robbery. He was tried for having robbed three of the victims but was acquitted by a jury. Thereafter the State brought him to trial for having robbed the fourth victim and this time he was convicted by a different jury. His plea of double jeopardy was rejected by a sharply divided court which found that the separate prosecutions and trials did not deal with the same offense. In the course of the majority's opinion it expressed the view that our State most frequently employs the same evidence test under which a second trial is permissible except where "the evidence necessary to sustain the second indictment would have been sufficient to secure a legal conviction on the first." See 21 N.J., at page 502. This approach may be contrasted with the same transaction test which also appears in our cases and which broadly suggests that the plea of double jeopardy should be sustained where the charged offenses are part of the same criminal transaction. See State v. Cosgrove, ...