State v. Leibowitz

• Decision Date: 25 June 1956
• Docket Number: No. A--158,A--158
• Citation: 123 A.2d 526,22 N.J. 102
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Irving LEIBOWITZ, also known as John Metcalf, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 102

22 N.J. 102

123 A.2d 526

STATE of New Jersey, Plaintiff-Respondent, v. Irving LEIBOWITZ, also known as John Metcalf, Defendant-Appellant.

No. A--158.

Supreme Court of New Jersey.

Argued May 28, 1956.

Decided June 25, 1956.

George R. Sommer, Newark, argued the cause for appellant.

Frank J. V. Gimino, Asst. Prosecutor, Jersey City, argued the cause for the State (Frederick T. Law, County Prosecutor, Kearny, attorney).

The opinion of the court was delivered by

WACHENFELD, J.

The only question involved on this appeal is whether the court below committed error in denying appellant's plea of Autrefois acquit under the circumstances herein narrated.

The State, however, also urges dismissal of the appeal on the ground the appellant failed to prepare an adequate transcript in accordance with R.R. 1:2--8(e) or, in the alternative, to submit an agreed statement of the case pursuant to R.R. 1:6--2. Appellant has been remiss in his failure to provide an adequate record; nevertheless, the facts essential to the determination of the present case may be gleaned from the statements of both parties and the truncated record appended, and we shall, therefore, pass over the procedural irregularity to consider the appeal on its merits.

The Hudson County grand jury, at the 1953 term, returned two indictments against appellant, Irving Leibowitz, and one Harry Inberman. Indictment No. 41 charged that Leibowitz and Inberman 'with a certain metal bullet fired from a firearm, did commit an assault upon one Donald M. Lochmund with intent to kill the said Donald M. Lochmund.' The second indictment was identical except that the victim was alleged to be Edwin Woodson, Jr. The above indictments were consolidated and tried, resulting in a verdict of not guilty.

Thereafter, the 1953 term of the Hudson County grand jury returned indictment No. 655 against Leibowitz charging him with the unlawful concealment of a firearm in an automobile, in violation of N.J.S. 2A:151--41, N.J.S.A. The defendant entered a written plea of Autrefois acquit to this indictment, based on his previous acquittal of the offense of assault with intent to kill. The trial judge dismissed this plea on motion, and the indictment proceeded to trial.

At the trial the State offered testimony which, if believed, would establish that on September 8, 1953 Leibowitz drove a sedan up to a toll booth at the New Jersey entrance to the Lincoln Tunnel. The Port Authority policeman on duty there had previously been warned to stop any car bearing the license number of the sedan which Leibowitz was driving. Accordingly, when Leibowitz offered his fare, the policeman directed him to turn off his ignition key and he then approached the car. As the policeman reached the car and been over to speak to the two occupants, Leibowitz stepped on the accelerator starting the car toward the tunnel opening.

When the car had proceeded a short distance, guns appeared in the hands of Leibowitz and his compensation and they began firing at the toll collector and another Port Authority policeman in the vicinity. The car sped into the tunnel, but, before reaching the New York exit, its passage was barred by a bus stopped on the roadway. The policemen, who had commandeered a truck, overtook the fugitives. When the officers advanced toward the car with drawn guns, Leibowitz surrendered. His companion, later identified as Harry Inberman, was found to be seriously wounded. The officers searched the automobile and discovered one revolver underneath a coat on the front seat and another on the floor of the car, near Inberman's feet.

Leibowitz did not take the stand in his own behalf, and the evidence offered by him consisted solely of the indictments for assault with intent to kill, upon which the State stipulated the defendant had been found not guilty. There was a further stipulation that if the sister of Inberman had been called as a witness, she would have testified that her brother, who was deceased at the time of the second trial, was left-handed.

The defendant's counsel, in his opening statement to the jury, offered the following version of what had happened on the afternoon of September 8, 1953. On the day in question, Leibowitz, who was in New York, received a call from Inberman, who told him that he was at a party in Newark and was 'too tight' to drive his car. He asked Leibowitz to come to Newark and drive him back to New York. Leibowitz agreed and journeyed to Newark by tube. He walked across the street and found Inberman sitting in the car, which Leibowitz proceeded to drive over the skyway to the Lincoln Tunnel entrance.

According to this version, Inberman, and not Leibowitz, tendered the tolltaker the tunnel fare. The office told Leibowitz to shut off the motor, but as he reached for the key to do so, Inberman pulled out a gun and told him that if he did not drive ahead he, Inberman, would kill him. With Inberman's gun at his head, Leibowitz started to drive toward the tunnel, and, when they approached the entrance, Inberman started shooting out the rear of the car at the police officers. Leibowitz and Inberman proceeded through the tunnel until they were stopped near the New York end by a bus or truck. Inberman then shot himself, after which the defendant got out of the car and surrendered to the police when they arrived.

Although these facts were asserted in counsel's opening, they were never proven. As we have already stated, the defendant did not testify and no one appeared for him in support of this theory.

While no part of the record of the first trial has been furnished to us, we assume from the oral argument that the defense counsel's version, recounted above, was the defense offered at the first trial, which resulted in the defendant's acquittal on the assault indictments.

The jury at the second trial found Leibowitz guilty.

Leibowitz now appeals without impugning the factual determinations of the jury, resting his appeal solely on the validity of his plea of Autrefois acquit. We granted certification prior to argument in the Appellate Division. R.R. 1:10--1(a).

Appellant claims his conviction on the unlawful concealment charge violates Art. I, par. 11, of the New Jersey Constitution of 1947, which provides: 'No person shall, after acquittal, be tried for the same offense.' Appellant's theory is that Possession of the identical firearm referred to in the indictment for unlawful concealment constituted an essential element of the charges laid in the first two indictments for assault with intent to kill. Since appellant was acquitted, so runs the argument, on the first twoindictments, he has been subjected to double jeopardy by the prosecution of the third.

To support this thesis, appellant relies on several cases in this jurisdiction involving the 'crime within a crime' relationship where the lesser offense is a so-called 'ingredient' of the greater. State v. Labato, 7 N.J. 137, 80 A.2d 617 (1951); State v. Cooper, 13 N.J.L. 361 (Sup.Ct.1833); State v. Greely, 30 N.J.Super. 180, 103 A.2d 639 (Law Div.1954), affirmed 31 N.J.Super. 542, 107 A.2d 439 (App.Div.1954).

In Labato, which best exemplifies appellant's contention, the defendant was convicted under the Disorderly Persons Act, R.S. 2:202--16, for the possession of 'numbers' slips. Possession alone is the gravamen under this statute. Subsequently, d...