Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
The Cumberland County grand jury returned a two-count indictment against defendant under N.J.S. 2A:113-9 which reads:
"Any person who causes the death of another by driving a vehicle carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others, is guilty of a misdemeanor; but no record of a judgment or conviction hereunder shall be admissible in a civil action for damages arising out of the accident in which the death occurred."
The first count charged that defendant, by driving his automobile "carelessly and heedlessly in wanton disregard of the rights and safety of others * * * unlawfully and wantonly caused the death of Marie Vesper." (Italics ours) The second
count was in almost identical language, except that it charged willful disregard of the rights and safety of others. The jury found defendant not guilty on the second ("willful") count but could not reach a verdict with respect to the first ("wanton") count.
Defendant thereafter moved to dismiss the first count on the ground that he had been acquitted of the same offense by reason of the verdict on the "willful" count, and that a retrial on the "wanton" count would constitute double jeopardy. The motion was denied. We granted leave to appeal.
Defendant argues that separating the same offense into two component parts, and charging them as separate counts, is the very essence of double jeopardy. He points out that the two offenses charged arose out of a single incident; that "wanton" disregard of the rights and safety of others is a necessary ingredient of "willful" disregard, and that the State's proofs were indiscriminately addressed to both counts.
The State, on the other hand, contends that the two terms differ in meaning, and that there is a distinct element in the "willful" offense which is not included in the "wanton" charge, namely, the intent to do wrong and inflict injury. The fact that the State was unable to convince the jury that defendant was guilty of "willful" disregard of the rights or safety of others should not and does not, it is claimed, insulate him from being found guilty of wanton disregard in the operation of his automobile. The State insists that since "willful" and "wanton" are dissimilar and disjunctive terms, they may be pleaded in separate counts of an indictment, calling attention to the fact that this practice is recommended in 3 Schlosser, Criminal Laws of New Jersey (rev. ed. 1953), p. 1349, Forms 250 and 251, and that this type of pleading had been recognized in State v. Oliver , 37 N.J. Super. 379 (App. Div. 1955). That case was argued by the author of the text just cited. We find nothing in Judge Jayne's opinion which approves of the two-count practice (that point was not raised), and the case certainly did not deal with the issue of double jeopardy. The jury had found defendant guilty on the
first count of the indictment charging "wanton" disregard, and not guilty under the second count charging "willful" disregard. The court held the evidence was insufficient to sustain the conviction -- nothing more.
We have found no case dealing directly with the question of double jeopardy, which lies at the heart of the resolution of the present appeal. Prior decisions have attempted definitions of the terms "willful" and "wanton," but in entirely different settings. To consider those definitions without relation to their factual settings carries the potential of error.
For example, in State v. Neri , 10 N.J. Super. 224 (Cty. Ct. 1950), defendant was indicted under R.S. 2:138-9, predecessor to the present statute. The charge was that he had caused the death of another -- in the words of the statute -- by driving his vehicle "carelessly and heedlessly in willful or wanton disregard of the rights or safety of others." Defendant moved for judgment of acquittal at the close of the State's case. The county judge, after hearing the argument of counsel, determined that the State had failed to establish a prima facie case, and granted the motion. In the course of his oral opinion the judge noted that some reference had been made to "gross negligence" in the arguments on the motion. The judge observed that R.S. ...