Halpern, Crane and Michels. The opinion of the court was delivered by Halpern, P.J.A.D.
A brief summary of the events leading to the present indictment is necessary to understand the issues presented. Defendant Kevin Godfrey was arrested on July 1, 1974 by Officer Edward Rodriguez of the Englewood Cliffs Police Department when he found defendant in possession of a Chevrolet van motor vehicle which he ascertained had been stolen earlier that day, or the day before, in Unionville, New York. Defendant was charged with, and subsequently indicted for, unlawfully receiving a motor vehicle knowing it to have been stolen, in violation of N.J.S.A. 2A:139-3.*fn1
A nonjury trial was held on September 23, 1974 at which the State proved defendant had taken a Chevrolet van, bearing New York registration plates, without the permission of its owner, Eileen Gould, while it was parked in front of her home in Unionville, New York.
At the close of the proofs the trial judge acquitted defendant. He found defendant has stolen the van in the State of New York and, therefore, could not be guilty of receiving it in violation of N.J.S.A. 2A:139-3. In acquitting defendant he said, "* * * this Court is of the opinion that this defendant should have been charged with some other offense in New Jersey or in another jurisdiction, but certainly not in this statute." We agree with his determination since it is obvious that defendant could not have received or purchased the van in New Jersey.
Thereafter, in November 1974, defendant was indicted for having feloniously stolen the van in Unionville, New York, and "did knowingly bring the said vehicle into the State of New Jersey * * * contrary to the provisions of N.J.S.A.
2A:119-9 * * *." Defendant's motion to dismiss the indictment on double jeopardy grounds was denied. We granted defendant's application for leave to appeal, and now reverse.
Admittedly, the prosecutor knew the pertinent facts outlined above when he obtained the first indictment, and he presented the same facts to a grand jury when he obtained the second indictment. It is clear that if the second indictment were to be tried, the State would offer substantially the same proofs presented at the first trial. Under these circumstances, the motion to dismiss should have been granted whether it be on grounds of double jeopardy or fundamental fairness.
One of the most basic rights possessed by the people of this State and of the United States is freedom from being put in jeopardy a second time for the same criminal offense. State v. Roller , 29 N.J. 339 (1959). This principle, which grew into the common law and became rooted in tradition and conscience, was embodied in our Constitutions of 1844, Art. I, par. 10, and of 1947, Art. I, par. 11. Both paragraphs prohibit the trial of a person after acquittal for the same offense. The Fifth Amendment to the United States Constitution expresses the common law prohibition in more general terms, i.e. , "* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." In the light of historical evolution and treatment, the difference in language in the context of the present case is without distinction in meaning. The clauses are coextensive in application. State v. Wolf , 46 N.J. 301 (1966); State v. Williams , 30 N.J. 105 (1959). [at 167-168]
The term "same offense" has been variously defined. In State v. Mowser , 92 N.J.L. 474, 483 (E. & A. 1918), it was interpreted to mean "not only * * * the same offense as an entity and ...