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State v. Boening

Decided: November 10, 1960.

STATE OF NEW JERSEY, DEFENDANT-APPELLANT,
v.
LEWIS MATTHEW BOENING, PLAINTIFF-RESPONDENT



Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant appeals from an order denying his motion to vacate the sentence imposed for armed robbery under the third count of an indictment returned by the Cape May County grand jury in 1955.

The indictment charged that defendant, on July 2, 1955, (1) carried a concealed revolver, in violation of N.J.S. 2A:151-41(a); (2) committed atrocious assault and battery on one Waldow, by atrociously striking, beating, cutting, lacerating, wounding and maiming him with the revolver, contrary to N.J.S. 2A:90-1; and (3) committed armed

robbery by taking $15 from Waldow and $87 belonging to a hotel (where he was clerk), contrary to N.J.S. 2A:141-1 and 2A:151-5. When defendant appeared in County Court he was asked if he wanted counsel, but he refused any legal assistance. He admitted that he understood the offenses with which he was charged, and pleaded guilty. The plea was accepted, and the matter held for pre-sentence investigation.

At the time of sentence two months later defendant stated he would like to change his plea; he admitted carrying a concealed weapon but denied taking part in the armed robbery. His story was that he sat in an automobile outside the hotel while his companions went inside and committed the robbery. The court refused to allow a change of plea and proceeded to impose the following State Prison sentences: 12-13 months for carrying a concealed weapon, 5-7 years for atrocious assault and battery, and 12-15 years for armed robbery, the sentences to run concurrently. The trial judge said, however, that he would permit defendant to change his plea if upon investigation it should appear there was any scintilla of justification for withdrawal of the guilty plea. He assigned counsel to consult with the prisoner.

Defendant and his assigned counsel came before the County Court a week later. Counsel was invited to move, if he so desired, to withdraw the plea and go to trial. He declined to do so and stated that he had discussed the matter with defendant and it was the latter's desire to let the plea and sentences stand. Defendant concurred.

In August 1958, more than 2 1/2 years later, defendant moved to vacate the armed robbery sentence on the ground that it constituted double punishment for a single offense. The application was denied and this appeal followed.

Assigned counsel points out that the pleas and sentences were given in the same order in which the crimes charged appear in the indictment. From this basis he launches two arguments: (1) conviction for a crime which is a component

part of a greater offense bars prosecution for the greater offense, by operation of the doctrine of autrefois convict; (2) since atrocious assault and battery is a component part of the greater offense of armed robbery, prosecution for armed robbery following upon conviction of atrocious assault and battery placed defendant in double jeopardy.

The State raises the preliminary objection that the defense of double jeopardy was available to defendant at the time he entered his plea, and his failure to object at that time constituted a waiver citing R.R. 3:5-5(b)(2).

Under our former practice, the defense of double jeopardy had to be asserted by a written plea of autrefois acquit or convict. State v. Mark , 23 N.J. 162, 166 (1957). When not entered in writing, it was waived. State v. Tumbiolo , 28 N.J. Super. 231, 239 (App. Div. 1953), certification denied 14 N.J. 495 (1954); certiorari denied 347 U.S. 948, 74 S. Ct. 647, 98 L. Ed. 1095 (1954). The requirement of a formal written plea has been eliminated and the practice of motion before trial ...


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