For reversal -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Haneman. For concurrence in result -- Justice Jacobs. The opinion of the court was delivered by Proctor, J.
Defendants Robert Bell and Peter Lynch were jointly indicted for breaking and entering with intent to steal. They were tried separately and each was found guilty by a jury in the Somerset County Court. The defendants appealed and their cases were consolidated by the Appellate Division because they concerned the same events and presented common questions of law. That court affirmed the conviction, 105 N.J. Super. 238 (App. Div. 1969), and we granted defendants' petition for certification. 54 N.J. 251 (1969).
The facts material to this appeal are not disputed. About 2:00 in the morning of February 28, 1967, Three Lights Tavern in Bernardsville, Somerset County, was broken into and entered. A jug containing $120.82 and a bottle of whiskey valued at six dollars were stolen. Between 1:30 and 2:30 that morning the defendants Bell and Lynch twice aroused the suspicion of the police. On the first of these occasions, a police officer took their names and the license of the car they were traveling in after he had seen it skidding on the snow-covered roads. On the second occasion two other police officers saw the car which was being driven in a manner that aroused their suspicions. The police did not stop the vehicle, but instead drove down the road in the direction the defendants had come from to check on the various stores in the vicinity. At the tavern they noticed fresh footprints in the snow leading to the rear window which had been removed.
They immediately called the owner, who, after inspecting the premises, reported that the jug containing the money and a bottle of whiskey were missing. The police then radioed an alert for the suspicious vehicle which included a description of the two missing items. Responding to the description given them, the police of Randolph Township, Morris County, stopped the car and arrested the defendants. The jug and the bottle of whiskey were found in the automobile.
Later that day the police swore out complaints in the Municipal Court of Randolph Township, charging each defendant with violating N.J.S.A. 2A:139-1*fn1 by receiving stolen goods, viz., the jug containing the money and the bottle of whiskey. On March 8, after having waived indictment and trial by jury in accordance with the requirements of N.J.S.A. 2A:8-22, each defendant pleaded guilty to the charge, was sentenced to 30 days in jail and was fined $25 and $5 court costs. The 30-day sentence was suspended but defendants were incarcerated in the Morris County Jail for six days in lieu of payment of the fine and costs.
On June 21, 1967, the defendants were indicted by the Somerset County Grand Jury for breaking and entering the Three Lights Tavern with intent to "steal, take and carry away the money, goods and chattels * * * found" in the tavern in violation of N.J.S.A. 2A:94-1.*fn2 At the trial, the only evidence produced by the State to show an "intent to steal" -- a requisite element of the crime charged -- was the jug and the bottle of whiskey. Each defendant urged that there was a repugnancy between their convictions
for breaking and entering with intent to steal and receiving stolen goods. The trial court rejected these contentions as did the Appellate Division in upholding the convictions. The Appellate Division reasoned that the crimes of receiving stolen property and breaking and entering with intent to steal are not necessarily inconsistent since "one can break and enter with intent to steal and yet be a receiver of goods stolen by another." 105 N.J. Super., at 241. The court conceded that a repugnancy would have existed if the defendants were charged with larceny and receiving stolen goods, but concluded that defendants "estopped themselves from maintaining that they were the thieves" by pleading guilty in the municipal court to receiving the goods. Id. at 240-241.
We believe that the Appellate Division erred in permitting the defendants' convictions to stand in light of their previous convictions for receiving stolen goods.
At the outset we note that the area of double jeopardy and res judicata has been the subject of a great deal of confusion in the criminal law. See discussion in State v. Currie, 41 N.J. 531, 535-539 (1964); Lugar, "Criminal Law, Double Jeopardy and Res Judicata," 39 Iowa L. Rev. 317 (1954). Many of the difficulties would be eliminated if all charges against a defendant were disposed of in a single trial rather than by piecemeal litigation. See State v. Cormier, 46 N.J. 494, 504 (1966); Model Penal Code § 107(2) (Proposed Official Draft 1962). Although our rules do not require it, the State could have avoided the problems in the present case had it tried the defendants for the crimes of larceny, breaking and entering with intent to steal, and receipt of stolen goods in one trial in the county court. Any inconsistencies in the verdicts of the juries could then have been cured by the trial judge. See State v. Fioravanti, 46 N.J. 109, 126-128 (1965). But since the defendants were convicted of receiving stolen goods and of breaking and entering with intent to steal in successive trials, we are compelled to answer the question of whether these convictions are repugnant, i.e., whether the State is collaterally estopped from trying
the defendants for breaking and entering with intent to steal after accepting their pleas of guilty ...