Collester, Leonard and Halpern. The opinion of the court was delivered by Collester, P.J.A.D.
Defendant was found guilty by a jury of murder in the first degree and armed robbery. He was sentenced to life imprisonment for the murder and to concurrent prison terms aggregating 12-15 years for the conviction of armed robbery. This appeal followed.
James Rainey, Robert Arrington, William Anderson and defendant Robert Hubbard were jointly indicted for the murder of Robert Howard and the armed robbery of Howard, Lorenzo Bens and Alonzo Bankston. They were tried separately. Rainey was convicted of second degree murder and Arrington and Anderson pleaded non vult to the murder indictment. The Hubbard case was the last to be tried.
The State's case against defendant was based on the theory of a felony murder. The State's proofs indicated that on May 27, 1971 defendant, together with Rainey, Arrington and Anderson, forced their way into Howard's apartment. During the course of the robbery Howard seized a hammer and struck Arrington. Rainey, who had a gun, shot and mortally wounded Howard.
On appeal defendant raises the following points as grounds for reversal: (1) the convictions for armed robbery and felony murder were barred by the doctrine of collateral estoppel; (2) the court's charge on aiding and abetting constituted plain error; (3) the verdict was against the weight of the evidence; (4) the court's supplementary instructions in response to the jury's question regarding the law applicable to a felony murder were legally insufficient
and misdirected the jury; (5) the court's review of the evidence in the charge was prejudicial; (6) the court erred in denial of a motion for a mistrial; (7) the conviction and sentence of life imprisonment was excessive; and (8) the sentence to life imprisonment is unconstitutional.
Defendant's principal contention is that his convictions for armed robbery and felony murder were barred by the doctrine of collateral estoppel. The record indicates that at the close of the testimony defendant's motion to strike the charge of felony murder from the jury's consideration was denied by the trial court. Defendant argues here, as he did below, that the prior conviction of Rainey of second degree murder constituted a finding that no robbery had occurred and, that issue having been decided, the State was collaterally estopped from proceeding against Hubbard on the charge of felony murder. Defendant bases his argument primarily on Ashe v. Swenson , 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970).
In Ashe six men engaged in a poker game were robbed by three or four masked gunmen. Ashe was tried and acquitted of robbery of one of the poker players. Thereafter he was tried for the robbery of another of the players and was convicted. The United States Supreme Court reversed. The court held that since the single rationally conceivable issue before the jury in the first trial was whether defendant had been one of the robbers, the rule of collateral estoppel, which is embodied in the Fifth Amendment's guaranty against double jeopardy, made the second trial wholly impermissible.
We conclude that the rule of collateral estoppel laid down in Ashe is not applicable to the instant case. The court in Ashe clearly indicated that the principle of collateral estoppel could be invoked in criminal cases only when an issue of ultimate fact has been previously litigated and determined by a valid and final judgment in the prosecution of the same defendant.
Under our law all those who conspire to commit a crime and participate in some way in its commission are equally guilty as principals. State v. Cooper , 10 N.J. 532, 568 (1952). We believe it is well settled that where principals in a joint indictment for murder are tried separately, the conviction or acquittal of the defendant first tried has no bearing on a judgment against the other; that the doctrines of collateral estoppel and res judicata do not apply in cases in which a different defendant is prosecuted in the second trial. See State v. Mondrosch , 108 N.J. Super. 1 (App. Div. 1969), certif. den. 55 N.J. 600 (1970); State v. Bradley , 361 Mo. 267, 234 S.W. 2d 556, 559 (Sup. Ct. 1950); State v. Wilson , 236 Iowa 429, 19 N.W. 2d 232, 239 (Sup. Ct. 1945); Maughon v. State , 9 Ga. App. 559, 71 S.E. 922, 924 (Ct. App. 1911); Reed v. Commonwealth , 125 Ky. 126, 100 S.W. 856, 858 (Ct. App. 1907); State v. Martino , 27 N.M. 1, 192 P. 507, 509 (Sup. Ct. 1920).
We conclude that United States v. Bruno , 333 F. Supp. 570 (E.D. 1970), upon which defendant relies, is inapposite. In that case two of three defendants charged with conspiracy were tried and acquitted. Thereafter the court dismissed the conspiracy indictment against Bruno on the ground that the acquittal of all the other co-conspirators precluded the conviction of the remaining defendant. The court's reference to collateral estoppel (upon which defendant Hubbard relies) concerned a ruling that the government would be collaterally estopped from relitigating the issue of authenticity of a questioned document in the first case in a subsequent prosecution of the third conspirator. The ruling, which was unnecessary for disposition of the case, in our opinion was based ...