State v. Cooper
| Decision Date | 01 November 1921 |
| Citation | 115 A. 386 |
| Parties | STATE v. COOPER. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Certiorari to Court of Quarter Sessions. Essex County.
Wilfred C. Cooper was indicted for manslaughter, and also for atrocious assault, and acquitted of the former, and he pleaded acquittal as to the latter, and, the State's demurrer to his plea being sustained, he brings certiorari. Writ dismissed, and record remitted to the quarter sessions for further proceedings.
Argued June term, 1921, before TRENCHARD, BERGEN, and MINTURN, JJ.
McCarter & English, of Newark, for prosecutor.
J. Henry Harrison, of Newark, for the State.
BERGEN, J. Two indictments were found by the grand inquest of Essex county against the defendant, one for manslaughter for killing one Harry L. Meyer, and the other for committing an atrocious assault and battery on Florence Meyer. The defendant entered pleas of not guilty to each indictment and was put on trial on the indictment for manslaughter which resulted in an acquittal. The defendant was then allowed to withdraw the plea of not guilty to the indictment charging atrocious assault and battery on Florence Meyer, and to file a plea of autrefois acquit setting up that the assault on Florence Meyer was done by the same identical act which caused the death of Harry L. Meyer, and that it was the same offense of which he had been acquitted in the manslaughter case, and not a different offense. To this plea the state filed a demurrer, which the court of quarter sessions sustained, whereupon the defendant was allowed a writ of certiorari to review the action of the court in sustaining the demurrer.
We are of opinion that the writ was improvidently issued, because there is no judgment to review. All that appears in the record is:
"After hearing argument of counsel in the above-stated matter the court sustained the demurrer filed herein."
This is not a judgment subject to review. State v. Ackerman, 64 N. J. Law, 99, 45 Atl. 27.
Our criminal procedure act (C. S. p. 1835, § 45) provides that in a plea of autrefois acquit it shall be sufficient to state that the defendant had been lawfully acquitted of the offense charged in the indictment, which is, substantially, the plea filed in this case. The proper practice in such a case is for the state to take issue on the facts stated, and thus put the defendant to proof of the averments it contains, and, as was done in State v. Mowser, 91 N. J. Law 395, 103 Atl. 805, on the trial of that issue the court may charge the jury that the plea is not sustained by the proofs when that is the fact.
"Whenever the offenses charged in the two indictments are capable of being legally identified as the same offense by averments, it becomes a question of fact for the jury to determine whether the averments be supported, or the offenses be the same, and the replication should conclude to the country." State v. Ackerman, supra.
If such a plea on its face be insufficient in substance, it may be so adjudged, and if the demurrer be sustained when it ought not to be, it can be reviewed after final judgment by a writ of error, as was done in State v. Rosa, 72 N. J. Law, 462, 62 Atl. 695.
The common-law rule that in all cases, except where felony is charged, the finding against the defendant on such a plea was, because of its falsity, a conclusive presumption of his guilt on the merits to be followed by judgment, as on a plea of guilty, does not prevail in this state, where the distinction between misdemeanor and felony has been abrogated and the judgment against the defendant on his plea should be respondeat ouster, and the trial proceeded with to final judgment; but in the instant case there is no judgment to be reviewed either...
To continue reading
Request your trial
-
State v. Firth
...in which case the subject in hand was elaborately and instructively treated. State v. Rosa, 72 N. J. Law, 462, 62 A. 695; State v. Cooper, 96 N. J. Law, 376, 115 A. 386. The defendant's plea was without any legal force and the demurrer was properly Under point II of the brief of counsel of ......
-
State v. Block
...for the State, negativing the plea. This direction was manifestly proper as there was nothing in the proofs to sustain it. State v. Cooper, 96 N.J.L. 376, 115 A. 386. The second point is that "The trial court erred in that an impartial jury was not drawn for the trial of the indictment beca......
-
State v. Cosgrove
...have stated above, it is obvious that no verdict in favor of the plea on those facts could possibly be supported. In State v. Cooper, 115 A. 386, 96 N. J. Law, 376, 377, Justice Bergen, speaking for this court, said that the state may take issue on the facts stated and put the defendant to ......
- Reimer v. Bd. of Chosen Freeholders of Essex County