State v. Francis

• Decision Date: 05 May 1961
• Docket Number: No. A--5,A--5
• Citation: 170 A.2d 476,67 N.J.Super. 377
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. David FRANCIS, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 377

67 N.J.Super. 377

170 A.2d 476

STATE of New Jersey, Plaintiff-Appellant, v. David FRANCIS, Defendant-Respondent.

No. A--5.

Superior Court of New Jersey Appellate Division.

Argued May 1, 1961.

Decided May 5, 1961.

Robert S. Miller, Deputy Atty. Gen., for appellant (David D. Furman, Atty. Gen., attorney; Stephen F. Lichtenstein, Deputy Atty. Gen., of counsel; Matthew T. Rinaldo, Legal Asst., Elizabeth, on the brief).

No appearance for respondent.

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court was delivered

PER CURIAM.

The State appeals under R.R. 3:5--5(b)(7) from an Atlantic County Court order dismissing its amended complaint on the ground of double jeopardy. Defendant had appealed to that court from a conviction in Egg Harbor Township Municipal Court for failing to obey stop signs, in violation of N.J.S.A. 39:4--144. No testimony was taken or record of proceedings made in the County Court; the facts were stipulated and the order reversing the conviction and dismissing the amended complaint entered on defendant's motion.

The case is before us on a statement of evidence and proceedings prepared and approved pursuant to R.R. 1:6--3 and 2:6. The statement shows that early on the morning of November 22, 1959 defendant drove his automobile at an excessive rate of speed through the municipalities of Northfield, Linwood and Egg Harbor Township. Local police pursued him through the first two places. The ride ended in an accident in Egg Harbor Township. The Northfield police officer issued a summons for reckless driving, in violation of N.J.S.A. 39:4--96. Defendant was also charged by a state trooper with reckless driving through Egg Harbor Township.

The Northfield Municipal Court found defendant guilty of reckless driving, imposed a fine of $50 and costs, and revoked his driver's license for two years. A few weeks later defendant appeared before the Egg Harbor Township Municipal Court which dismissed the reckless driving charge lodged with it on the ground of double jeopardy. However, the testimony showed that defendant had gone through two stop signs in the township without stopping. The complaint was therefore amended, defendant found guilty of the stop sign violation, and a fine of $25 and costs imposed. The appeal to the Atlantic County Court followed. In dismissing the amended complaint on the ground of double jeopardy the county judge held that 'the actions of the defendant were of a continuous nature and the conviction of reckless driving in Northfield encompassed the stop sign violations in Egg Harbor Township.'

The question of whether or not the defense of double jeopardy is available to a defendant in prosecutions under the Motor Vehicle Act has not conclusively been decided. In State v. Williams, 21 N.J.Misc. 329, 34 A.2d 141 (1943), a recorder's court case, defendant pleaded guilty to operating a motor vehicle without a license (N.J.S.A. 39:3--10). He was then charged with operating the car after his license had been revoked (N.J.S.A. 39:3--40). Both offenses arose out of the same operation. The recorder held that the double jeopardy doctrine did not apply; it was available only in criminal prosecutions, and violations of the Motor Vehicle Law did not fall into that category. Nevertheless, the recorder considered the plea and held that double jeopardy could not be invoked since the Legislature had provided for two separate and distinct offenses.

The question was again discussed in State v. Willhite, 40 N.J.Super. 405, 123 A.2d 237 (Cty.Ct.1956). As here, defendant drove recklessly in a single continuous journey through three municipalities. He was charged with reckless driving and successively convicted in the municipal court of each place. On appeal the County Court held that any attempt to prosecute defendant in the second and third municipalities would be to place him in double jeopardy. The judge found himself in disagreement with the suggestion made by the State that the double jeopardy doctrine is applicable only to crimes and not motor vehicle violations, noting that the latter were quasi-criminal in nature. He went on to say, however, that even if the doctrine of double jeopardy were not applicable, 'the doctrine of Res judicata would lead to the same result.'

Proceedings under the reckless driving section of the Motor Vehicle Act, N.J.S.A. 39:4--96, are quasi-criminal in nature. The basic rights of a defendant so charged are entitled to the same protection as are normally accorded one accused of a criminal offense. State v. McCarthy, 30 N.J.Super. 6, 9, 103 A.2d 169 (App.Div.1954); State v. Hulsizer, 42 N.J.Super. 224, 228, 126 A.2d 47 (App.Div.1956), both drunken driving cases under N.J.S.A. 39:4--50. And see State v. Kincaid, 9 N.J.Misc. 1194, 157 A. 442 (C.P.1931); State v. Henry, 56 N.J.Super. 1, 10, 151 A.2d 412 (App.Div.1959). We hold that the plea of double jeopardy is, in a proper factual setting available to a defendant charged with multiple offenses under the Motor Vehicle Act. See 172 A.L.R. 1053 (1948), supplementing the annotation in 44 A.L.R. 564 (1926).

Our courts have in a number of cases adopted the test of double jeopardy set forth in State v. Labato, 7 N.J. 137, 144--146, 80 A.2d 617 (1951) '* * * The true test of former jeopardy would seem to be whether the evidence necessary to sustain the second indictment would have been sufficient to secure a legal conviction on the first. * * *

'Where 'the fact prosecuted' is the same in both prosecutions, though the offense differ 'in coloring and degree' there is prior jeopardy. * * * It is the evidence, not the theory of the pleader, that determines the issue. * * *'

Manifestly, evidence necessary to sustain a conviction of passing through the two stop signs in Egg Harbor Township without stopping, would not be the same as that required to support a charge of reckless driving in Northfield. The 'fact prosecuted' is not...