State v. Chevencek
| Citation | 23 A.2d 176,127 N.J.L. 476 |
| Decision Date | 17 December 1941 |
| Docket Number | No. 1.,1. |
| Parties | STATE v. CHEVENCEK et al. |
| Court | United States State Supreme Court (New Jersey) |
Error to Court of Quarter Sessions, Morris County.
Paul Chevencek and others were convicted of conspiracy to commit fornication, and they bring error.
Affirmed.
Argued October term, 1941, before BROGAN, C. J., and CASE and HEHER, JJ.
William A. Hegarty, Prosecutor of the Pleas, of Morristown, for defendant in error.
Edward F. Broderick, of Morristown (Luke A. Kiernan, Jr., of Newark, of counsel), for plaintiffs in error.
The plaintiffs in error, Chervencek and others, were convicted of conspiracy to commit fornication. The indictment alleges that in furtherance of the conspiracy and to accomplish its object they met with the complaining witness on December 11, 1937, in Rockaway Township, Morris County.
To the indictment a plea autrefois acquit was filed, which alleged that at the same term of court, when the instant indictment was returned, the plaintiffs in error were also indicted for having committed a rape upon the same complaining witness and that on the trial of this indictment they were acquitted. On the issue of whether the prosecution of the indictment in the cause before us constituted the double jeopardy interdicted by our fundamental law (Constitution of the State of New Jersey, Art 1, § 10, N.J.S.A.) a jury was impaneled and, after hearing and argument, the court directed a verdict overruling the pica. Pleas of not guilty to the present indictment were then entered. The defendants were tried, convicted and sentenced. The single point on this appeal is that the court erred as a matter of law in ruling against the validity of the plea autrefois acquit.
The plaintiffs in error rely on three cases to accomplish a reversal of this judgment, State v. Cooper, 13 N.J.L. 361, 25 Am.Dec. 490; State v. Mowser, 92 N.J.L. 474, 106 A. 416, 4 A.L.R. 695; State v. Cosgrove, 103 N.J.L. 412, 135 A. 871. In the Cooper case the defendant was indicted for the murder of one Hopper whose death resulted from the unlawful burning of the dwelling of one Smith. A second indictment charged Cooper with arson of the Smith house. Conviction resulted from the trial of the arson indictment. At the next term the indictment for murder was moved. Cooper pleaded the prior conviction. The plea was held good and a bar to the prosecution for murder. This court held that the second trial should not proceed for another offense "growing out of the same identical act, and where one is a necessary ingredient in the other." There the common law felony, arson, which caused the death of Hopper was a necessary ingredient of the murder of Hopper by burning.
In the Mowser case the defendant and two others conspired to rob one Richards on the highway. Two of Mowser's conspirators waylaid Richards and in the melee he was struck over the head with a piece of pipe and this caused his death. Mowser, with the others, was indicted for the murder of Richards. He pleaded not guilty. Later he was indicted with the others for assault with intent to rob. He entered a plea of guilty to this indictment and thereupon filed a plea of autrefois convict to the indictment for murder. Our Court of Errors & Appeals in that case said [92 N. J.L. 474, 106 A. 418, 4 A.L.R. 695]: "The primary inquiry * * * must be whether or not the murder was the result of the criminal act of the accused done in the perpetration of the robbery to which he had pleaded guilty." The plea in this case was upheld. The prosecution for murder was barred. The logic of the opinion is quite like that in the Cooper case, supra, whether or not the offenses stemmed from the same transaction or were the product of a single criminal act.
In the Cosgrove case, too, the plea autrefois acquit was held good in an indictment for manslaughter. There the defendant, in operating an...
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...v. Giardina, 27 N.J. 313, 142 A.2d 609 (1958); State v. Oats, 32 N.J.Super. 435, 108 A.2d 641 (App.Div.1954); State v. Chevencek, 127 N.J.L. 476, 23 A.2d 176 (Sup.Ct.1941). The gist of the offense of conspiracy lies in the forming of the scheme or agreement among the parties. State v. Carbo......
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...to commit an offense is a separate and distinct offense from the substantive crime planned and consummated. State v. Chevencek, 127 N.J.L. 476, 23 A.2d 176 (Sup.Ct.1941); State v. Oats, 32 N.J.Super. 435, 108 A.2d 641 (App.Div.1954). Recently, a searching scrutiny by this court of the recor......
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