State v. Louden, A--533
| Decision Date | 01 October 1952 |
| Docket Number | No. A--533,A--533 |
| Citation | 21 N.J.Super. 497,91 A.2d 428 |
| Parties | STATE v. LOUDEN et al. |
| Court | New Jersey Superior Court — Appellate Division |
Daniel J. Louden and Edward J. Hanabury, pro se.
Mario H. Volpe, Mercer County Prosecutor, Trenton, attorney for respondent (Frank H. Lawton, First Asst. Prosecutor, and Frederick M. English, Asst. Prosecutor, Trenton, on the brief).
Before Judges EASTWOOD, GOLDMANN and FRANCIS.
On August 7, 1949 defendants broke into a garage and stole $30 in cash from the office. They then stole an automobile from the adjoining shop. They were subsequently jointly charged in separate accusations with (1) larceny of the motor vehicle (R.S. 2:145--6, N.J.S.A.), and (2) breaking, entering and larceny of money (R.S. 2:115--1, 2:115--3 and 2:145--2, N.J.S.A.). On December 16, 1949 both defendants pleaded guilty to the accusations. They were subsequently sentenced by the Mercer County Court to State Prison for a term of five to seven years on the first accusation, and for a term of three to five years on the second, the sentences to run consecutively.
Defendants, presumably under Rule 2:7--13, moved before the Mercer County Court for correction of the sentences, claiming that they constituted a double punishment for crimes growing out of the same act, thereby subjecting them to double jeopardy. They sought to have vacated the conviction and sentence on their plea of guilty to the charge of breaking, entering and larceny of money. The County Court denied their motion.
Defendants cite State v. Cooper, 13 N.J.L. 361 (Sup.Ct.1833) and State v. Mowser, 92 N.J.L. 474, 106 A. 416, 4 A.L.R. 695 (E. & A.1919), reversing 91 N.J.L. 395, 103 A. 803 (Sup.Ct.1918). Neither supports their contention of double jeopardy; in each case the two felonies charged were the result of the same criminal act. Here the act of breaking and entering the garage and stealing cash from the office gave rise to one criminal charge. The subsequent distinct act of stealing an automobile found in the garage resulted in the other charge.
State v. Cooper holds that the test of double jeopardy is whether acquittal of one offense would show that the defendant could not have been guilty of the other. As was recently said by the Supreme Court, '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.' State v. Labato, 7 N.J. 137, 80 A.2d 617, 620 (1951); and see 1 Wharton on Criminal Law (Rev.Ed.1932) § 394, p. 531. Acquittal of the charge of larceny of the automobile would not have proved ...
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