Rauffenbart, J.c.c. (temporarily assigned).
This matter is before the court on defendant's motion to dismiss an indictment charging murder.
On or about June 5, 1969 Fannie Murray was the victim of a robbery and physical wounds apparently inflicted during the commission of that robbery. The defendant was subsequently indicted for the crimes arising out of that incident.
The indictment (I 689-68-M) charged atrocious assault and battery, assault with intent to rob and robbery; thereafter, on October 27, 1969, subsequent to an initial plea of not guilty, defendant, with the aid of counsel, entered a retraxite plea of guilty to the first count, to wit, atrocious assault and battery. The assistant prosecutor indicated at the time of the retraxit plea that the prosecutor would move, at the appropriate time, to dismiss the remaining counts of the indictment. Sentence on the first count followed on December 5, 1969, defendant being sentenced to an indeterminate term in the New Jersey Reformatory; the commitment was directed to the Youth Reception and Correction Center at Yardville. Fannie Murray died on January 23, 1970. Pursuant to a motion made by the prosecutor, an order was signed by the court on September 15, 1970 dismissing the second and third counts of the indictment. On October 29, 1970 the grand jury returned the present indictment (I 179-70-S) charging defendant with murder.*fn1 Counsel for defendant now moves, consistent with R. 3:10-2, to dismiss the present indictment contending that trial upon it is barred by the double jeopardy guarantee's proscription against prosecution for "same offenses."
Our Constitution provides that "no person shall, after acquittal be tried for the same offense." N.J. Const. (1844), Art. I, par. 10; N.J. Const. (1947), Art. I, par. 11. New Jersey's constitutional guarantee, although narrow in its phraseology, was not meant to restrict the common law protection, but rather to insure against the contention that a defendant may be entitled to immunity from further trial where his first trial ends, not in acquittal, but in jury disagreement or other indecisive disposition. State v. Roller ,
29 N.J. 339 (1959); Newark v. Pulverman , 12 N.J. 105 (1953). For the common law history of the double jeopardy guarantee, see 4 Blackstone, Commentaries 335; State v. Littlefield , 70 Me. 452 (Sup. Jud. Ct 1880); State v. DiGiosia , 3 N.J. 413 (1950).
The courts of this State have employed three distinct tests to determine whether a defendant is threatened with prosecution for the same offense. The "same transaction" test determines what are same offenses by viewing the underlying act of the wrongdoer and ascribing all the results naturally flowing therefrom to the underlying act. State v. Cooper , 13 N.J.L. 361 (Sup. Ct. 1833); State v. Rosa , 72 N.J.L. 462 (E. & A. 1905); State v. Mowser , 92 N.J.L. 474 (E. & A. 1919); see also State v. Fitzsimmons , 60 N.J. Super. 230 (Cty. Ct. 1960) and State v. Hoag , 21 N.J. 496 (1956), aff'd 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1957).
The "lesser included" offense test holds that the finding of same offense is satisfied when there has been an acquittal or conviction upon a necessary ingredient of a criminal act which is presently threatening the accused with prosecution. State v. Midgeley , 15 N.J. 574 (1954); State v. Greely , 30 N.J. Super. 180 (Cty. Ct. 1954), aff'd 31 N.J. Super. 542 (App. Div. 1954); State v. Fitzsimmons , 60 N.J. Super. 230 (Cty. Ct. 1960); State v. Dixon , 40 N.J. 180 (1963); State v. Wolf , 46 N.J. 301 (1966).
Holding that two acts are the same offenses by the use of the "same evidence" test requires a determination whether the evidence necessary to sustain the second prosecution would have been sufficient to secure a legal conviction on the first prosecution. State v. Midgeley , 15 N.J. 574 (1954); State v. DiGiosia , 3 N.J. 413 (1950); State v. War , 38 N.J. Super. 201 (Cty. Ct. 1955); State v. Hoag , 21 N.J. 496 (1956), aff'd 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1957); State v. Leibowitz , 22 N.J. 102 (1956); State v. Francis , 67 N.J. Super. 377 (1961).
Our Supreme Court has held that no test is absolute in its acceptability; in various fact situations one of the various tests may properly be ...