State v. Berry

• Decision Date: 17 February 1964
• Docket Number: No. A--85,A--85
• Citation: 197 A.2d 687,41 N.J. 547
• Parties: The STATE of New Jersey, Plaintiff-Appellant, v. Arthur M. BERRY, Jr. and Albert Tomasello, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 547

41 N.J. 547

197 A.2d 687

The STATE of New Jersey, Plaintiff-Appellant, v. Arthur M. BERRY, Jr. and Albert Tomasello, Defendants-Respondents.

No. A--85.

Supreme Court of New Jersey.

Argued Jan. 7, 1964.

Decided Feb. 17, 1964.

Solomon Forman, Asst. County Prosecutor, for appellant (Augustine A. Repetto, Atlantic County Prosecutor, attorney; Ernest Curtis, Atlantic City, of counsel and on the brief).

Edward I. Feinberg, Atlantic City, for respondents (Feinberg, Fishman & Ginsburg, Atlantic City, attorneys).

The opinion of the Court was delivered by

JACOBS, J.

The Atlantic County Court granted the defendants' motions to dismiss indictments for atrocious assault and battery in violation of N.J.S. 2A:90--1, N.J.S.A., and threats to kill and murder in violation of N.J.S. 2A:113--8, N.J.S.A. The State appealed to the Appellate Division and we certified before argument there.

Vernon McCoy was the chef or short order cook at a diner located in Hammonton. During the early morning hours of February 14, 1963 the defendants Berry and Tomasello entered the diner and engaged in a scuffle with McCoy. After the scuffle they left the diner but returned sometime thereafter during which later visit they allegedly threatened to kill and murder McCoy. Complaints against the defendants charging disorderly conduct were filed by McCoy, along with complaints charging threats to kill in violation of N.J.S. 2A:113--8, N.J.S.A. The disorderly conduct complaints charged each defendant with (1) creating disturbance while intoxicated in violation of N.J.S. 2A:170--30, N.J.S.A.; (2) using loud, profane and indecent language in violation of N.J.S. 2A:170--29, N.J.S.A.; and (3) assault and battery in violation of N.J.S. 2A:170--26, N.J.S.A.

The complaints were heard by the local magistrate who testified before the Atlantic County Court as to what had transpired before him. Conflicting stories had been presented to him and his recollections were not entirely clear. Apparently McCoy and the defendant Berry were engaged in fisticuffs or some sort of scuffle when the defendant Tomasello interceded. The magistrate did not recall any testimony with respect to threats to kill during the scuffle but did recall testimony as to such threats during the later visit by the defendants. At the close of the testimony before the magistrate, he found the defendant Berry not guilty of creating a disturbance while intoxicated but guilty of assault and battery and using loud, profane and indecent language. Berry was fined $125 plus costs. Tomasello was found guilty of using loud, profane and indecent language but not guilty on the other disorderly conduct charges. The complaints for threats to kill in violation of N.J.S. 2A:113--8, N.J.S.A. were forwarded by the magistrate to the Atlantic County Prosecutor with written recommendations that they be dismissed; admittedly his recommendations were in no sense binding. Although at oral argument there was some suggestion to the contrary, the prosecutor has advised that the complaints under N.J.S. 2A:113--8, N.J.S.A. were the only indictable charges filed with the magistrate and forwarded by him to the prosecutor's office.

After the proceeding before the magistrate had been completed, the Atlantic County Grand Jury returned two indictments, one against Berry and the other against Tomasello. Each indictment was in two counts, the first charging the commission of atrocious assault and battery in violation of N.J.S. 2A:90--1, N.J.S.A., and the second charging threat to kill and murder in violation of N.J.S. 2A:113--8 N.J.S.A. In due course the defendants moved to dismiss the indictments on the ground that their prosecution would violate principles of double jeopardy and Res judicata. The motions were granted by the Atlantic County Court which entered orders of dismissal. In support of its appeal from the orders, the State urges that, since the magistrate admittedly had no jurisdiction to deal with the crimes of atrocious assault and battery and threat to kill, the proceeding before him could not bar subsequent indictment and prosecution for those crimes in a court of competent jurisdiction. It further urges that, in any event, the offense of threat to kill is wholly dissimilar from the disorderly conduct offenses dealt with before the magistrate and consequently its prosecution was not barred.

The pertinent New Jersey precedents dealing with double jeopardy and related principles may be found in our opinion filed this day in State v. Currie, 41 N.J. 531, 197 A.2d 678 (1964). We there referred to the same transaction test of State v. Mowser, 92 N.J.L. 474, 106 A. 416, 4 A.L.R. 695 (E. & A. 1919), the same evidence test of State v. Hoag, 21 N.J. 496, 122 A.2d 628 (1956), aff'd, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), and the included offense doctrine of State v. Cooper, 13 N.J.L. 361 (Sup.Ct.1833), but noted that they were not absolute in nature, that emphasis should be placed upon underlying policies rather than technisms, and that primary consideration should be given to factors of fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals. Under the cited tests as well as the approach in Currie, the prosecution for assault and battery before the magistrate clearly precluded the later prosecution for atrocious assault and battery. The charges were similar though they differed in degree, the lesser charge was clearly an essential ingredient of the greater, and the facts on which they were based were identical. The later charge arose out of the very same transaction as did the former and the evidence necessary for the later charge would sustain conviction on the former. The...