For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
Defendant was convicted in the county court, November 13, 1960, on an indictment which charged that he did manufacture, process, distill and possess illicit alcoholic beverages in violation of R.S. 33:1-50(e). The offense is a misdemeanor cognizable in the county court and not in the municipal court. The Appellate Division affirmed, and after some intermediate proceedings, we granted certification on defendant's petition. 38 N.J. 363 (1962).
A number of grounds for reversal have been presented to us. It is necessary to consider only one of them, namely, that defendant's conviction constituted double jeopardy. We conclude that the judgment must be set aside on that ground.
Defendant Dixon operated a luncheonette in Camden, New Jersey. On September 13, 1958 the premises were raided by an Alcoholic Beverage Commission inspector and city detectives. Dixon and eight other persons were present at the time, allegedly engaged in a birthday party. He went immediately to a rear room and began to pour the contents of an unlabeled pint jar down the sink. A detective seized the jar, which then contained approximately five ounces of alcohol. It had no tax stamps on it. That quantity turned out to be the only tax-unpaid alcohol on the premises. Other bottles of whisky and cans of beer were confiscated. They were all tax-paid.
The following day a complaint was filed in the Camden Municipal Court accusing Dixon of illegal possession of untaxed alcoholic beverages contrary to R.S. 33:1-50(e). A plea of not guilty was entered.
As has been indicated, the offense specified is not within the subject matter jurisdiction of that court. It appears, however, that the magistrate, conscious of the small amount of alcohol involved, communicated with an assistant prosecutor, explained the situation and obtained permission to dispose of the matter in his court by downgrading the charge to a disorderly persons offense. There is no doubt the telephone call was made and, as it was put at oral argument by the State, that consent was "probably" given to the magistrate to
dispose of the matter, rather than holding it for Grand Jury action. There is some question whether the conversation included specific reference to treating the complaint as a disorderly persons offense. In any event, we are thoroughly satisfied that everyone involved acted in good faith and contemplated disposition in the municipal court.
The magistrate testified at the hearing on the double jeopardy plea, that on September 26, 1958, in the presence of the city prosecutor and the interested police officers, he permitted the complaint to be downgraded to violation of N.J.S. 2A:170-1. This statute provides in part:
"Any person who is apprehended and proven to the satisfaction of the magistrate before whom he is brought to be a person who is engaged in an illegal occupation or who bears a bad reputation, and consorts for an unlawful purpose with thieves, burglars, pickpockets, swindlers, confidence men or other criminals or persons who bear a bad reputation, is a disorderly person. In any prosecution under this section the fact that the person apprehended is engaged in an illegal occupation or bears a bad reputation and is found consorting with thieves, burglars, pickpockets, swindlers, confidence men or other criminals or persons who bear a bad reputation, is prima facie evidence that such consorting was for an unlawful purpose."
The magistrate could not remember whether he had instructed the clerk of his court to amend the original complaint in formal fashion. Such an amendment was not noted on the docket or complaint, although the clerk testified that he had been directed to do so. Dixon entered a plea of not guilty to the new charge and the trial thereon proceeded.
No stenographic record was made of the proceeding. But evidence was received with respect to the illegal alcohol and its possession by Dixon, and as to the bad reputation of some of the persons who were on the premises at the time of the raid. At the conclusion of the trial, the magistrate found defendant guilty of violating N.J.S. 2A:170-1 for engaging in an illicit business (established, in his opinion, under the ...