Price, Sullivan and Foley. The opinion of the court was delivered by Foley, J.A.D.
This is an appeal from a judgment of conviction entered in the County Court on a jury verdict.
On April 27, 1959 the defendant was brought to trial on a two-count indictment which charged him, Milton Alexander,
and James D. Crudup (1) with willfully entering "the building of Joseph Barr" with intent to steal, contrary to N.J.S. 2 A:94-1, and (2) with the theft of a television set, "the property of Joseph Barr," contrary to the provisions of N.J.S. 2 A:119-2. Both Alexander and Crudup had entered pleas of non vult to the indictment prior to the trial.
During the cross-examination of Barr it developed that both the building and the television set were the property of J. & H. Barr Inc. The State then moved to amend the indictment in respect of the allegations of ownership of premises and the television set. This motion was resisted by defendant and the objection to the amendment was sustained by the trial court upon the authority of State v. Cohen , 105 N.J.L. 529 (Sup. Ct. 1929). Counsel for defendant then moved for a judgment of acquittal. The prosecutor expressed no opposition and the motion was granted and the jury dismissed.
The prosecutor having indicated his determination to proceed anew, defendant, after consultation with his counsel, agreed to waive indictment by the grand jury and to proceed with a trial by accusation, reserving, however, his right to plead double jeopardy. An accusation was immediately prepared which was identical with the indictment except that "J. & H. Barr Inc." was substituted for "Joseph Barr" and the street address of the building was stated. A plea of "not guilty" to both counts was entered. Counsel then moved to dismiss the accusation upon the ground that the trial of the charge set forth therein would place the defendant in double jeopardy and thus be violative of N.J. Const. 1947, Art. I, § 11, which provides:
"No person shall, after acquittal, be tried for the same offense * * *."
The motion was denied. It was renewed and again denied at the conclusion of the State's case. On April 29, 1959 defendant was found guilty on both counts of the accusation.
Defendant's first allegation of error is that the accusation
filed against him placed him in double jeopardy. It is undisputed that the acquittal entered in the trial of the indictment was not on the merits, but was granted solely on the grounds that there was a variance between the proof and the indictment, and that the holding in State v. Cohen, supra , would not permit an amendment of the indictment to show the true owner of the building and the stolen property.
In order to prevail on a plea of double jeopardy it is incumbent upon a defendant to show that a legal conviction was possible under the first indictment upon the facts alleged in the subsequent charge. Thus it is of focal significance here to determine whether the indictment first lodged against Davis was capable of sustaining a conviction upon the facts of this case or whether the variance between the proof and the indictment was fatal. If a fatal variance existed, the indictment would never have placed the defendant in jeopardy of the offense alleged with the result that that defense had no application to the proceedings under the subsequent accusation. See generally 1 Anderson, Wharton's Criminal Law & Procedure , § 140, p. 317 (1957). However, if it is determined that the variance was immaterial, with the result that the indictment was capable of sustaining a conviction upon the facts as they were subsequently developed, the defense may be a valid one.
Although there are decisions which adhere to the rule that a conviction is sustainable under an indictment only if the proofs developed adhere strictly to the allegations of the indictment, see, e.g., Young v. State , 185 Tenn. 596, 206 S.W. 2 d 805 (Sup. Ct. 1947); Winn v. State , 138 Tex. Cr. R. 202, 135 S.W. 2 d 118 (Crim. App. 1940); cf. State v. Wright , 339 Mo. 41, 95 S.W. 2 d 1159 (Sup. Ct. 1936), the weight of authority points to the view that if the proof presented substantially adheres to that outlined in the indictment, and the indictment ...