On motion to dismiss indictments.
The defendants have moved this court to dismiss (1) Indictment No. 518-57 charging the defendants with armed robbery in violation of N.J.S. 2 A:141-1 and 2 A:151-5, and (2) Indictment No. 491-57 charging the defendants with breaking, entering and larceny in violation of N.J.S. 2 A:94-1 and 2 A:119-2, on the ground that the defendants had been lawfully convicted of the offenses charged in the said indictments.
Both defendants were charged in Indictment No. 467-57 with murder in violation of N.J.S. 2 A:113-1 and 2 A:113-2. This indictment alleges that the defendants did "on or about the Eighth day of May, 1958, in the City of Passaic, * * * willfully, feloniously and with malice aforethought kill and murder Robert Strone." The theory upon which the State proceeded at the trial of this indictment was that Robert Strone was killed and murdered by the defendants during the course of a robbery -- that is, by the defendants' taking Officer Strone's service revolver by force. The opening remarks by the assistant prosecutor and the evidence offered on behalf of the State clearly and unequivocally sustain this. The trial court, by its instructions to the jury, submitted the question of innocence or guilt of the defendants upon the same theory. The jury returned a verdict finding both defendants guilty of murder in the first degree, with a recommendation of life imprisonment.
The grand jury also returned two additional indictments -- one for armed robbery, No. 518-57, and the other for breaking, entering and larceny, No. 491-57. The indictment for armed robbery alleges, in part, that the defendants did "on or about the Eighth day of May, 1958 in the City of Passaic * * * then and there being armed with and having in their possession a certain firearm, to wit, a revolver * * * unlawfully, forcibly and feloniously take from the person of Robert Strone, while in the performance of his duties as a police officer * * *, a service pistol of the said Robert Strone, by violence and by putting him the said Robert Strone in fear."
The indictment for breaking, entering and larceny alleges, in part, that the defendants did "on or about the Eighth day of May, 1958, in the City of Passaic * * * willfully, maliciously and feloniously break and enter the building and store premises of Herbert Koehler * * * with intent to steal * * *," and further alleges that the defendants did "feloniously * * * steal, take and carry away" certain chattels.
Neither testimony nor affidavits were offered by the defendants or the State on the return day of this motion. The argument before the court was based solely upon the law. Reference was made by counsel to the transcript of the proceedings during the trial of the defendants on a charge of murder, and that constitutes the only factual matter in relation to the motion now before the court.
As to Indictment No. 518-57 charging armed robbery, it was argued that the robbery of the service pistol referred to in this indictment is the same offense which was testified to in the trial of the defendants for murder under Indictment No. 467-57. The transcript is clear that the two indictments refer to the identical robbery. Based upon the same evidence test, the same transaction test, or any other test to determine double jeopardy, the motion to dismiss Indictment No. 518-57 for armed robbery should be granted.
The conviction of the defendants for murder under Indictment No. 467-57 is a bar to further prosecution under Indictment No. 518-57. "Where the accused may be convicted of a lesser offense included in the greater laid in the indictment, an acquittal or conviction of the greater offense is on grounds of former jeopardy a bar to a subsequent trial for the lesser offense." State v. Di Giosia , 3 N.J. 413, 419 (1950). See also State v. Labato , 7 N.J. 137, 144 (1951); State v. Mowser , 92 N.J.L. 474, 479 (E. & A. 1918); State v. Cooper , 13 N.J.L. 361 (Sup. Ct. 1833); State v. Rosa , 72 N.J.L. 462 (E. & A. 1905).
The application of the defendants, in relation to Indictment No. 491-57, charging breaking, entering and larceny,
does, however, present a troublesome problem for the court. In order to arrive at a conclusion, it becomes necessary to review some of the proofs offered by the ...