State v. Cosgrove
| Decision Date | 31 January 1927 |
| Docket Number | No. 26.,26. |
| Citation | 135 A. 871 |
| Parties | STATE v. COSGROVE. |
| Court | New Jersey Supreme Court |
Error to Supreme Court.
John Cosgrove, Jr., was convicted of atrocious assault and battery, and he brings error. Reversed.
For opinion below, see 132 A. 231.
Harold Simandl, of Newark, for plaintiff in error.
John O. Bigelow, of Newark, Prosecutor of the Pleas, for the State.
The plaintiff in error was convicted in the Essex county quarter sessions of atrocious assault and battery and was sentenced to the Essex county penitentiary for the term of eight months. It appears from the record that he had been indicted and tried on a charge of manslaughter for causing the death of Mary Mullaney and was acquitted. He was also indicted for atrocious assault and battery upon one Lillian Dowling, which assault and battery grew out of the same act that caused the death of Mary Mullaney.
The facts on which the indictment of manslaughter and the indictment for atrocious assault and battery were predicated are as follows: While Mary Mullaney and Lillian Dowling were crossing Bloomfield avenue in Newark, hand in hand, they were run into and knocked down by an automobile operated by the plaintiff in error, and as a result of the defendant's act, Mary Mullaney sustained injuries causing her death, and Lillian Dowling received injuries from which she recovered.
The plaintiff in error filed a plea of autrefois acquit, to which pleading the state filed a replication, and, issue being joined, the matter came on for trial, and the fact, underlying the indictment, that is, that the assault and battery was the product of the same act which was made the basis of the indictment for causing the death of Mary Mullaney being conceded nevertheless, the trial judge directed a verdict in favor of the state upon the theory that because on the indictment for manslaughter the plaintiff could not be convicted of atrocious assault and battery, and as assault and battery was not an integral part of the offense, hence he was not being tried twice for the same offense on an indictment charging him with atrocious assault and battery.
When the case came up for review in the Supreme Court, on a writ of error, that tribunal affirmed the judgment of the quarter sessions, and in answer to the contention of counsel for plaintiff in error that, "inasmuch as both indictments grew out of the same occurrence, and inasmuch as manslaughter is a higher grade of crime than assault and battery and defendant was acquitted on an indictment for manslaughter though the victim was different, the acquittal of manslaughter bars the further prosecution of the indictment for atrocious assault," declared in its opinion, as follows:
...
To continue reading
Request your trial
-
State v. Roller
...of double jeopardy should be sustained where the charged offenses are part of the same criminal transaction. See State v. Cosgrove, 103 N.J.L. 412, 135 A. 871 (E. & A. 1927); State v. Pennsylvania Railroad Co., 9 N.J. 194, 87 A.2d 709 (1952); State v. Mowser, 92 N.J.L. 474, 106 A. 416, 4 A.......
-
State v. Currie
...Other New Jersey decisions have applied the test in varying situations which need not be detailed here. See State v. Cosgrove, 103 N.J.L. 412, 135 A. 871 (E. & A. 1927); State v. Pennsylvania R.R. Co., 9 N.J. 194, 87 A.2d 709 (1952); State v. Boening, supra, 63 N.J.Super., at p. 594, 165 A.......
-
State v. Hoag
...It is said the 'same evidence' test is modified in this jurisdiction where there are multiple victims of a 'single act.' See State v. Cosgrove, supra; State v. Pennsylvania R.R. However, we cannot concede that the defendant may avail himself of the plea in this case under any recognized con......
-
People v. Allen
...by adverse holdings in other jurisdictions. Defendant places reliance upon a number of cases which will be reviewed. In State v. Cosgrove, 103 N.J.L. 412, 135 A. 871, a motorist accidentally struck two persons with his car, killing one and injuring juring the other. He was charged with mans......