For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
[41 NJ Page 533] On August 21, 1960 Lieutenant Mullen, Sergeant Koczan and Detective Petro of the Perth Amboy police force, in the course of an investigation, were riding in Koczan's car when they saw the defendant Daniel Currie driving a car. Koczan positioned his car diagonally across the road, whereupon Currie stopped some 25 feet away. Mullen then left the Koczan car, approached the Currie car and told Currie that he was a police officer. At that point Currie put his car in gear and started to make a sharp left turn around the Koczan car. Mullen, who had his hand on a door handle of the Currie car, was struck and was dragged about 10 or 15 feet. The Currie car then struck the Koczan car and, without slowing down, headed toward Petro who had left the car and was calling upon Currie to stop. To avoid being hit, Petro jumped into the air and landed on the hood of the Currie car. When Currie veered to the right Petro was thrown off the hood and onto nearby parked cars. The Currie car swerved back striking the Koczan car again, and then headed toward the intersection of Smith and Amboy Avenues where Detective Simon was stationed. Simon called upon Currie to stop but was ignored and had to jump for his own safety. Currie continued on his way and eluded the police for several hours before he was apprehended. He was charged in the Municipal Court of Perth Amboy with the Motor Vehicle Act violations
of reckless driving and leaving the scene of an accident. N.J.S.A. 39:4-96; N.J.S.A. 39:4-129. He was convicted on September 14, 1961 and thereafter appealed to the County Court. He was found guilty and fined $25 plus costs after a trial de novo before Judge Schwartz. N.J.S.A. 39:5-11; R.R. 3:10-10; State v. Joas, 34 N.J. 179, 189 (1961).
In September 1961 the Middlesex County Grand Jury returned three indictments against the defendant. Two charged that he had committed atrocious assault and battery against Mullen and Petro in violation of the Crimes Act. N.J.S. 2A:90-1. The third charged an attempt to commit an atrocious assault and battery on Simon in violation of the Crimes Act. N.J.S. 2A:85-5. The indictments were brought on for trial before Judge Molineux and a jury in the Middlesex County Court. Evidence was introduced as to both the happenings on August 21, 1960 and the extent of the injuries suffered by Mullen and Petro. Mullen's injuries were described as multiple contusions and bruises of the left shoulder, the left elbow and left leg, and a slight stiffening of the left side of the neck. Petro's injuries were described as a contusion of the left shoulder and chest, contusions of the left lumbo-sacral area, sprain of the left wrist and abrasions of the lower parts of both legs.
At the close of the State's testimony, the defendant moved for dismissal. His motion was denied and he then rested his case without taking the witness stand. The trial judge in his charge defined atrocious assault and battery and instructed the jury that in order to find the defendant guilty it must determine that he had acted with intent to do bodily harm to the persons named in the indictments. The jury returned verdicts of guilty on the indictments charging atrocious assault and battery on Mullen and Petro and not guilty on the indictment charging attempted atrocious assault and battery on Simon. Thereafter the defendant moved for a judgment of acquittal notwithstanding the verdict on the ground that the State had failed to prove that the injuries sustained were substantial. He further moved (in the event the motion for acquittal
was denied) for a new trial on the ground that the jury's verdict was against the weight of the evidence. His motions were denied and he was sentenced to serve concurrent terms in State Prison of not less than two nor more than three years. He appealed to the Appellate Division which affirmed in a per curiam opinion. He then applied to this Court for certification which was granted.
The first and primary point advanced by the defendant in support of his appeal is that, in view of the earlier proceedings under the Motor Vehicle Act, the State's prosecution of the indictments was barred under principles of double jeopardy, and res judicata or collateral estoppel. This point was not raised, as it should have been, in advance of the trial before Judge Molineux. See R.R. 3:5-5(b)(2); State v. Mark, 23 N.J. 162, 167 (1957); State v. Boening, 63 N.J. Super. 588, 592 (App. Div. 1960); State v. Greely, 30 N.J. Super. 180, 195 (Hudson Cty. Ct. 1954), aff'd 31 N.J. Super. 542 (App. Div. 1954). The applicable court rule provides that the defense of double jeopardy and other defenses and objections based on defects in the institution of the prosecution or in the indictment or accusation (except that it fails to show jurisdiction in the court) must be raised by motion before trial. Here there was no such motion; indeed the issue was not raised at any time before the trial judge. It was first presented to the Appellate Division which summarily rejected it under the authority of State v. Shoopman, 11 N.J. 333 (1953). In view of its importance and the absence of any objection by the State we shall now pass on it, although we again call the bar's attention to the unequivocal practice requirement that matters of this nature be raised before trial. See State v. DiPaolo, 34 N.J. 279, 287 (1961).
Blackstone gave early recordation in his Commentaries to the universal common law maxim that no man is to be placed in jeopardy "more than once for the same offense." The fifth amendment embodies this principle and someday it may be viewed as constitutionally binding upon the states by virtue of the fourteenth amendment. See State v. Williams, 30 N.J. 105, 122
(1959); cf. Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2 d 684 (1959); Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2 d 913 (1958); see also Henkin, "'Selective Incorporation' in the Fourteenth Amendment," 73 Yale L.J. 74 (1963). In any event, most state constitutions contain comparable language; although New Jersey's constitutional language is narrower, the full sweep of the common law doctrine has been long and firmly accepted in our State. See State v. Cooper, 13 N.J.L. 361, 370 (Sup. Ct. 1833); State v. Mowser, 92 N.J.L. 474, 485 (E. & A. 1919); State v. Labato, 7 N.J. 137, 143 (1951). Our 1947 Constitution provides that, "no person shall, after acquittal, be tried for the same offense." Art. I, par. 11. That provision was not in the Constitution of 1776 and first appeared in the Constitution of 1844. Art. I, par. 10. The history of the 1844 constitutional convention discloses that the use of the more limited phraseology was intended not to impair the common law maxim but to insure that a defendant is not entitled to immunity from a second trial where his first trial ends, not in acquittal, but in jury disagreement or other indecisive disposition. See City of Newark v. Pulverman, 12 N.J. 105, 110 (1953); State v. Roller, 29 N.J. 339, 344 (1959); State v. Williams, supra, 30 N.J., at p. 113.
No one currently questions the great worth of the constitutional safeguard against double jeopardy. It justly assures that the State with its great resources will not be permitted to harass and oppress the individual by multiple prosecution or punishment for the same offense. The difficulty arises in determining just when we are dealing with the same offense within the contemplation of the safeguard. As early as State v. Cooper, supra, 13 N.J.L. 361, the Supreme Court was confronted with the problem. There, Cooper wilfully burned a house and in the fire a man died. Cooper was charged with arson and murder. He was first convicted of the charge of arson and then was brought on for trial on the charge of murder. The State contended that the arson and murder were separate offenses and that consequently Cooper could not prevail
on his claim of double jeopardy. This contention was rejected by Justice Drake who noted that in the circumstances the charge of arson was an essential ingredient of the charge of murder and that trial of the lesser ingredient, whether it resulted in conviction or acquittal, barred later trial of the greater offense of which it was part. See also State v. Hill, 44 N.J. Super. 110, 112 (App. Div. 1957). In the course of his opinion he stressed the broad spirit, rather than the technical letter of the double jeopardy principle, and the injustice of first trying and punishing a man for arson based on his ...