State v. Jacques

• Decision Date: 16 February 1968
• Docket Number: No. A--1300,A--1300
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. George Richard JACQUES, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 230

99 N.J.Super. 230

239 A.2d 252

STATE of New Jersey, Plaintiff-Respondent, v. George Richard JACQUES, Defendant-Appellant.

No. A--1300.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 2, 1968.

Decided Feb. 16, 1968.

Colin M. Dillon, Elizabeth, assigned counsel, for appellant.

Stanley J. Kaczorowski, Asst. Prosecutor, for respondent (Leo Kaplowitz, Union County Prosecutor, Attorney, Arthur J. Timins, Rahway, on the brief).

Before Judges KILKENNY, CARTON and ROSEN.

The opinion of the court was delivered by

ROSEN, J.S.C. (temporarily assigned).

Defendant appeals from a conviction by a Union County jury for armed robbery. The indictment was in two counts, the first charging defendant with the commission of a robbery (N.J.S. 2A:141--1, N.J.S.A.) and the second with being armed in the perpetration of the robbery (N.J.S. 2A:151--5, N.J.S.A.). Defendant was sentenced to a term of six to eight years for the robbery and a consecutive term of one to two years on the second count.

This was defendant's second trial on the same charges. After the first trial he was sentenced to three to five years for the robbery and a consecutive term of one to two years for being armed. The original conviction was reversed on appeal and the matter was remanded for a new trial. ^*

The record discloses that on October 11, 1965 Peter Barrett was employed as a clerk by Lampert Dairy Farms in Rahway, New Jersey. At or about 7:45 or 7:50 P.M. he was in front of the store and noticed two men walk down the sidewalk, come toward the store and then turn a corner. Two or three minutes later they came back and headed toward the front door of the store. Barrett walked into the store and went behind the counter. The two men who were then in the store went over to the ice cream case, selected two ice cream cones and brought them to the counter. Barrett recorded the sale on the register. As he was opening the cash register drawer one of the two men pulled a gun from his waistband and told Barrett to give him the cash. The gun was described as 'small, black, with a square barrel. It was automatic.' In court Barrett identified defendant Jacques as the person who held the gun. Pursuant to defendant's demand Barrett took the money ($230) out of the cash register and turned it over to defendant, who then gave it to his accomplice. Defendant took $40 in change from Barrett and the two men backed out of the store.

Robert J. McClintock, who was indicted jointly with defendant for the same offenses, admitted his participation in the robbery. Apparently McClintock had known defendant for about six years. He did not recall who accompanied him in the criminal venture, although he testified that he had not seen defendant on the day the robbery occurred.

Defendant denied his participation in the robbery. The defense was alibi. Defendant, his former girlfriend and her mother testified. This testimony, if believed, would demonstrate that defendant was at the home of his girlfriend from approximately 7:15 P.M. until after 10 P.M. on the night of the robbery, whereas the robbery took place at or about 8 P.M.

Defendant contends that the trial judge committed prejudicial error by instructing the jury on the law of aiding and abetting in addition to the crime of robbery. The thrust of the argument is to the effect that there was no evidence in the record which would warrant any such instruction. This contention is devoid of merit.

N.J.S. 2A:85--14, N.J.S.A. provides that any one who 'aids, abets, counsels, commands, induces or procures another to commit a crime is punishable as a principal.' The distinction between principal and accomplice or aider and abettor has been abolished in our jurisdiction for purposes of indictment and punishment. State v. Western Union Telegraph Co., 12 N.J. 468, 494--495, 97 A.2d 480 (1953), appeal dismissed, 346 U.S. 869, 74 S.Ct. 124, 98 L.Ed. 379 (1953). This legal concept is defined in State v. Cooper, 10 N.J. 532, 92 A.2d 786 (1952),

'Under our law, all those who conspire to commit a crime and participate in some way in its commission are joint principals and each is as guilty as the person who actually commits the crime and is liable to the same punishment. They are indicted, in the language of the statute, as principals and are not accused of being accessories or aiders and abettors.' (at p. 568, 92 A.2d at p. 804)

The testimony demonstrates that defendant and another jointly participated in the commission of the armed robbery. Thus, each was an aider and abettor of the other. That defendant and his accomplice were walking together and entered the store at the same time, and that defendant handed part of the proceeds of the robbery to his accomplice, were circumstances to be considered by the jury. The jury would have the right to determine whether defendant, at a particular time, was acting as an aider or abettor or as a principal. That the evidence may have served a double duty of supporting the charge of armed robbery by defendant as a principal as well as an aider and abettor is immaterial. The law of aiding and abetting states a rule of criminal responsibility for acts which one assists another in performing. Defendant and his accomplice associated themselves with a criminal venture and participated in it with the express intention that it succeed. Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1948).

The answer to defendant's argument is summarized in State v. Woodworth, 121 N.J.L. 78, 1 A.2d 254 (Sup.Ct.1938)

'* * * This classification of such aiders and abettors as principals is basic in our jurisprudence * * *. The distinction thus sought to be made savors of Mere legal sophistry tending to hamper the due course of justice in a field intimately identified with the public safety and welfare. Subtlety of distinction all too frequently frustrates essential justice * * *.' (at p. 84, 1 A.2d at p. 258; emphasis added)

The trial court was correct in instructing the jury on aiding and abetting in the factual setting presented. In any event, the reference to aiding and abetting did not prejudice defendant's substantial rights and was not reversible error. State v. Fiorello, 36 N.J. 80, 86, 174 A.2d 900 (1961), certiorari denied 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962); State v. Western Union Telegraph Co. supra, 12 N.J., at pp. 494-495, 97 A.2d 480.

Assigned counsel, at defendant's request, also presented the following grounds of appeal: (1) the verdict was the result of mistake or prejudice; (2) defendant was deprived of a fair trial because McClintock was called as a witness for the State, and (3) defendant was prejudiced and deprived of a fair trial 'because McClintock's name was on the indictment since Robert J. McClintock knew the defendant and admitted his own guilt.'

The guilty verdict returned by the jury was not the result of mistake or prejudice. This was a case of positive identification as against testimony tending to prove alibi. The jury accepted the positive identification rather than the alibi. Their conclusion is justified by the evidence.

Defendant was not deprived of a fair trial by the State producing McClintock as a witness. McClintock admitted his guilt and testified only as to his own participation in the crime. McClintock's testimony, if anything, was favorable to defendant.

Lastly, defendant was not prejudiced and deprived of a fair trial because McClintock's name was on the indictment and the indictment was given to the jury during the course of their deliberation. The jury was instructed to scrutinize carefully McClintock's testimony because of his admission of guilt. The jury was further advised that the indictment was not evidence and that each person in the indictment was 'entitled to have his guilt or innocence separately assessed on the evidence.' We presume that the jury abided by the instruction of the court. As stated in Clark v. Piccillo, 75 N.J.Super. 123, 133, 182 A.2d 381, 386 (App.Div.1962), 'There can be no assumption under our system of jurisprudence that the jury will disregard the instructions of the trial court.' See State v. Cormier, 46 N.J. 494, 508, 218 A.2d 138 (1966). The language of the instruction was clear, understandable and unmistakable.

Finally, we are asked to modify the sentences imposed on defendant at the second trial to sentences not greater than those imposed at the first trial. Defendant contends that the increased penalty imposed at the second trial is a violation of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.

The view that a defendant who has been once convicted of a crime should not, if he is convicted again of the same crime at a new trial, be subjected to a more severe punishment or sentence than was imposed at the prior trial, has gained recognition in some jurisdictions. State of Oregon v. Turner, 429 P.2d 565 (Sup.Ct.1967) (robbery); State of Oregon v. Ramirez, 429 P.2d 572 (Sup.Ct.1967) (probation revocation proceedings) where the court observed that 'in this case no evidence adverse to the defendant was presented at the second hearing that was not presented at the first'; People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (Sup.Ct.1963) (murder); Application of Ferguson, 233 Cal.App.2d 79, 43 Cal.Rptr. 325 (App.Ct.1965) (rape, second sentence for increased number of years). Our Supreme Court reached the same result in State v. Wolf, 46 N.J. 301, 216 A.2d 586, 12 A.L.R.3d 970 (1966) (murder), as did the California Supreme Court in People v. Henderson, supra, but on standards of procedural fairness rather than a constitutional basis. See, Van Alstyne, 'In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant,' 74 Yale L.J. 606 (1965). There is considerable authority to the contrary. Annotation, 'Propriety of Increased Punishment on New Trial for Same Offense,' 12 A.L.R.3d 978 (1...