State v. Le Jambre

• Decision Date: 18 May 1964
• Docket Number: No. A--86,A--86
• Citation: 200 A.2d 489,42 N.J. 315
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Douglas W. LE JAMBRE, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 315

42 N.J. 315

200 A.2d 489

STATE of New Jersey, Plaintiff-Respondent, v. Douglas W. LE JAMBRE, Defendant-Appellant.

No. A--86.

Supreme Court of New Jersey.

Argued Jan. 7, and April 20, 1964.

Decided May 18, 1964.

Theodore G. Fitzgeorge, Trenton, for appellant (Joseph M. Dalton, Jr., Yardville, on the brief).

Edward J. Phelan, Asst. Pros., for respondent (Stanley E. Rutkowski, Pros., Mercer County, attorney).

PER CURIAM.

On September 13, 1962 the defendant allegedly committed a holdup at a tavern in Trenton, using a toy pistol in the process and forcibly taking $73 from the bartender. He was later arraigned before Michael A. Travers, a non-lawyer magistrate who had been designated to sit temporarily in the Trenton Municipal Court. See N.J.S. 2A:8--10, N.J.S.A.; R.R. 8:13--2. A complaint charging the defendant with robbery in violation of N.J.S. 2A:141--1, N.J.S.A. was prepared by the then clerk of the court, was signed and sworn to by Patrolman Dillon, and was placed by the clerk at the judge's bench. The defendant was in the courtroom and was represented by counsel. Because of obscurities in the record as to what occurred thereafter, we remanded the matter to County Court Judge Bennett for testimony and findings which have since been transmitted to us.

Magistrate Travers testified that when the complaint was handed up to him he said to counsel for the defendant, 'This is larceny, isn't it,' and counsel replied, 'Yes, your honor.' He testified further that the defendant then waived indictment and trial by jury and pleaded guilty and that thereupon he 'fined him $50 and gave him three months' suspended sentence in the county jail.' The magistrate did not recall anything about alterations in the complaint but the clerk of the court testified that after the sentence had been imposed and the magistrate had returned to his chambers, he took the complaint to the magistrate and inquired whether he wanted to 'dispose of it under petty larceny' and that, after receiving an affirmative response, he made certain alterations in the complaint. These consisted of x-ing out the references in the complaint to 'forcibly' and to the robbery statute (N.J.S. 2A:141--1, N.J.S.A.) and inserting a reference to the larceny statute (N.J.S. 2A:119--2, N.J.S.A.). There was no re-execution of the complaint by Patrolman Dillon. Although Judge Bennett determined that 'the original complaint was for armed robbery' and 'was later changed to larceny,' he found himself unable to determine whether the alterations occurred before or after the complaint was presented to the magistrate. We have carefully examined the transcript of the testimony and find no sufficient reason for rejecting the clerk's clear recollections in this regard.

The actions in the Municipal Court were all taken without the consent or knowledge of the Mercer County Prosecutor. In due course the prosecutor presented the matter of the alleged holdup to the Mercer County Grand Jury which returned an indictment charging the defendant with armed robbery in violation of N.J.S. 2A:141--1, N.J.S.A. and N.J.S. 2A:151--5, N.J.S.A. The defendant entered a plea of not guilty and then moved before trial to dismiss the indictment on his plea of double jeopardy. See State v. Currie, 41 N.J. 531, 535, 197 A.2d 678 (1964). After hearing argument, Judge Bennett denied the motion and the defendant appealed, with leave, to the Appellate Division. We certified before argument there.

We are not concerned here with cases such as State v. Labato, 7 N.J. 137, 80 A.2d 617 (1951), and State v. Mark, 23 N.J. 162, 128 A.2d 487 (1957), where disorderly conduct complaints were filed and determined before magistrates who were authorized to deal with them. Since they admittedly had jurisdiction to dispose of the disorderly conduct complaints, their determinations were held to bar later prosecutions for more serious charges based on the identical facts. See State v. Currie, supra, 41 N.J., at pp. 539--540, 197 A.2d 678; State v. Berry, 41 N.J. 547, 552--553, 197 A.2d 687 (1964). Nor are we concerned here with a case such as State v. Dixon, 40 N.J. 180, 191 A.2d 39 (1963), where a complaint for illegal possession of untaxed alcoholic beverages contrary to R.S. 33:1--50(e), N.J.S.A. was downgraded, with the consent of the county prosecutor, to a charge of disorderly conduct which was then tried by the magistrate; since the charge as thus downgraded was within the magistrate's jurisdiction, his determination was held to bar a later prosecution under R.S. 33:1--50(e), N.J.S.A. In the course of its opinion in Dixon this Court specifically pointed out that in order for the magistrate 'to retain jurisdiction and to dispose of the matter, permission to downgrade the offense had to be obtained from the prosecutor or his representative.' 40 N.J., at p. 187, 191 A.2d at p. 43. Here there was admittedly no such permission.

The robbery complaint against the defendant was duly sworn to and filed by Patrolman Dillon in accordance with R.R. 8:3. Upon receiving it, Magistrate Travers had jurisdiction to conduct the preliminary hearing and hold the defendant to await action by the Grand Jury but he had no jurisdiction to try the charge set forth in the complaint. In the first place he was a nonattorney magistrate and as such was not authorized to try any indictable offense even where the defendant waived indictment and trial by jury. R.R. 8:3--3(b); N.J.S. 2A:8--22, N.J.S.A. Secondly, even if he were an attorney-magistrate, he would not be authorized to try the charge of robbery since that offense, being punishable by a fine not exceeding $5,000 and imprisonment not exceeding 15 years (N.J.S. 2A:141--1, N.J.S.A.), was not one included within N.J.S. 2A:8--22, N.J.S.A. which lists the offenses triable by a magistrate on waiver of indictment and trial by jury. Cf. State v. War, 38 N.J.Super. 201, 205, 118 A.2d 553 (Cty.Ct.1955); Jucker v. Recorder's Court of Irvington, 133 N.J.L. 12, 14, 42 A.2d 269 (Sup.Ct.1945).

When Magistrate Travers proceeded to try the defendant, the only...