State v. Ackerman

• Decision Date: 13 November 1899
• Citation: 45 A. 27,64 N.J.L. 99
• Parties: STATE v. ACKERMAN.
• Court: New Jersey Supreme Court

45 A. 27

64 N.J.L. 99

STATE

v. ACKERMAN.

Supreme Court of New Jersey.

Nov. 13, 1899.

(Syllabus by the Court.)

Error to court of quarter sessions, Bergen county.

Albert J. Ackerman was Indicted for perjury. From an order sustaining a demurrer to a special plea, and refusal of trial by jury on such plea, defendant brings error. Reversed.

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL and LIPPINCOTT, JJ.

Hart & Hart, for plaintiff in error.

Peter W. Stagg, for the State.

LIPPINCOTT, J. This writ of error is directed to the Bergen county court of general quarter sessions of the peace, to bring Into this court for review the record and proceedings upon a certain indictment against the plaintiff in error, as defendant therein, for perjury. The Indictment was presented in the Bergen oyer and terminer of the December term, 1899, and from that court sent to the quarter sessions for trial. A plea of not guilty was entered by the defendant in the sessions; and afterwards leave was given for a withdrawal of this plea, and the defendant tendered an oral plea of autrefois acquit. The court refused to allow such oral plea, and directed the defendant to file the plea in writing, with a verification. To this plea the prosecutor of the pleas filed a demurrer, and the defendant joined therein. The defendant demanded that the issue made by the special plea of autrefois acquit be tried by a jury. The court refused such a trial, and upon argument sustained the demurrer, but no entry of any formal judgment was made. By this writ the defendant seeks a review of these proceedings and the finding of the court.

Upon a plea of autrefois acquit, and upon a proper trial thereof and determination, if it be in favor of the defendant named in the indictment, the judgment is final; but, if it be against the defendant, then it is in the nature of respondent ouster, and he is allowed to plead over, and have his trial for the offense itself. Whart. Cr. PI. & Prac. (9th Ed.) § 486. If the issue be found in favor of the defendant, the judgment is that he be dismissed and discharged from the premises on the present indictment specified, and that he go thereof without day; and this judgment is final. 1 Archb. Cr. Prac. & IT. (J. N. Pomeroy's Notes; 8th Ed.) p. 350. No further steps under the indictment can be taken against him, and the judgment is equivalent to an acquittal. All this rests upon the principle that no man shall be more than once in peril for the same offense, and it is the former verdict which constitutes the bar. Mount v. State, 14 Ohio, 295. The former verdict itself constitutes the bar. West v. State, 22 N. J. Law, 212-231; Smith v. State, 41 N. J. Law, 598; 1 Archb. Cr. Prac. & PI. (J. N. Pomeroy's Notes; 8th Ed.) p. 338, and cases cited. The conclusion reached is that the writ of error must be dismissed because the record shows no judgment. All that appears in the record is the plea, the demurrer, and joinder; and annexed is a transcript of the notes of the proceedings of the court upon the matter, showing that after argument the court sustained the demurrer. The record in no sense shows the entry of any judgment whatever in the premises upon which error will lie. But questions have been raised and fully argued as to the proper procedure upon the plea of autrefois acquit, and it has been deemed proper to indicate the manner in which such a plea should be disposed of, and the issue thereby raised determined.

Article 1, § 10, of the constitution of this state provides that "no person shall after acquittal be tried for the same offence." 1 Gen. St. p. 26. The criminal procedure act of this state (P. L. 1898, p. 882, § 45; 1 Gen. St. p. 1131, § 54) provides that "in any plea of autrefois convict or autrefois acquit it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted as the case may be, of the same offence charged in the indictment." It is contended in behalf of the defendant that the defendant under this statute can orally present the plea of autrefois acquit, but I do not conceive this is the proper construction of the statute. The statute provides what shall be a sufficient statement of the former acquittal in the plea. The plea itself is a plea to which the defendant was entitled in the absence of the statute, and at common law; and, as such, the lowest form of certainty would suffice, because it is a favored plea; yet it was always held that it must be in writing, and must set out the former record, and show the identity of the offense and person by proper averments; and this was always so held in the English courts until the passage of the statute of 14 & 15 Vict c. 100, § 28, which is precisely the same as our own statute. 1 Bouv. Diet. 137; Hawk. P. C. bk. 2, c. 36; Starkie, Cr. PI. 363; 1 Archb. Cr. Prac. & PI. (J. N. Pomeroy's Notes; 8th Ed.) p. 347; 1 Chit. Cr. Law, 462; 4 Bl. Comm. 335. The statute of 14 & 15 Vict, has always been considered as determining the form of the plea only. The plea at common law was a good special plea in bar to an indictment in the form then prescribed, and this statute relates only to the form of the plea which shall be considered as sufficient. 1 Archb. Cr. Prac. & PI. (J. N. Pomeroy's Notes; 8th Ed.) p. 347. Yet the plea must be, as at common law, in writing. The usual replication, when the record of the former acquittal was set out in the plea, was nul tiel record. But in the statutory plea the record need not be, and is not, set out; there can be no prout patet per recordum, and in criminal cases no such thing as a trial by the record; and, as the trial in all cases must be by the country, a general traverse of the plea is the proper replication by the state, whenever it is intended to contest the former acquittal or conviction. In many cases after the plea is presented the traverse is assumed. An examination of the record of the proceedings ordinarily reveals the fact that the plea has been tried without any formal replication at all, the general traverse or similiter being implied. State v. Swepson, 81 N. C. 571. But the better practice is for the court to require a formal replication of general traverse. This appears to be the practice laid down in all the cases in which the subject has been considered, and it is the general rule laid down by all the text writers. 1 Archb. Cr. Prac. & PI. (J. N. Pomeroy's Notes; 8th Ed.) p. 348; 11 Am. & Eng. Enc. Law, p. 969, and cases cited.

In the case now under consideration, the plea averred in apt and appropriate language, as an answer to the indictment found and presented to the court on December 20, 1898, under which he was arraigned in this proceeding, that he had been formerly indicted, arraigned, and tried for the same offense, under a good and valid indictment presented against him at the September term, 1898 (a copy of which indictment was annexed to the plea), and that under such indictment he was arraigned, pleaded "Not guilty," and was given a trial by jury on November 10 and 11, 1898; that evidence...