State v. Preto, 362

• Decision Date: 09 July 1958
• Docket Number: No. 362,362
• Citation: 144 A.2d 19,51 N.J.Super. 175
• Parties: The STATE of New Jersey v. Domingos PRETO, Leroy Neighbour, Charles Metz, Howard W. Cobbs (who is named as a co-conspirator, and not as a co-defendant), Defendants. Indictment
• Court: New Jersey Superior Court

Page 175

51 N.J.Super. 175

144 A.2d 19

The STATE of New Jersey v. Domingos PRETO, Leroy Neighbour, Charles Metz, Howard W.

Cobbs (who is named as a co-conspirator, and not

as a co-defendant), Defendants.

Indictment No. 362.

Superior Court of New Jersey, Law Division,

Criminal.

July 9, 1958.

H. Douglas Stine, Prosecutor of the Pleas of Union County, Plainfield (Cuddie E. Davidson, Jr., Westfield, appearing).

Ryan and Saros, Elizabeth, for defendant Domingos Preto. (John F. Ryan, Elizabeth, appearing).

BARGER, J.C.C. (temporarily assigned).

This defendant, by indictment No. 92, January 1955 term, was indicted under two counts. The first count charged the defendant with the offense of bookmaking under N.J.S. 2A:112--3, N.J.S.A., and the second count charged the defendant with the offense of conspiracy to violate the bookmaking statute contrary to N.J.S. 2A:98--1 and 2A:98--2, N.J.S.A.

Indictment No. 92 came on for trial and the jury was impaneled and sworn on January 9, 1957. It was late afternoon and the court recessed the trial of the cause until 10 A.M., January 10, 1957. At this point no testimony had been taken or evidence produced in the trial, and before the resumption thereof on January 10, 1957, as the record will indicate, Mr. John F. Ryan, attorney for the defendant, informed the court and Mr. Richard Muscatello, the assistant prosecutor appearing for the State, that it had just been brought to his attention that the mother of one of his clients, who was the defendant in another criminal trial to follow the trial of this cause, was a member of the jury then impaneled and sworn for the trial of this cause. Mr. Muscatello, in behalf of the State, then moved before the court that a mistrial be granted on two grounds, the first ground being that one of the members of the jury was the mother of one of the clients of defense counsel; and the second being that the State had newly discovered evidence.

At this point the court inquired of the prosecutor as to whether or not he was satisfied with the principle of double jeopardy as it might appear in this case in the event that the court granted a mistrial. Both counsel indicated that they were not fully and completely familiar with the effect of a mistrial in the application of the principle, but the prosecutor insisted upon the granting of his motion for a mistrial and it was accordingly granted by the court.

Thereafter the defendant was indicted under indictment No. 362, January 1956 term, on two counts. In this indictment the first count charges the defendant with the offense of conspiracy to violate the bookmaking statute contrary to N.J.S. 2A:98--1, N.J.S.A., and it is a similar charge to that contained in the second count of indictment No. 62. The second count in indictment No. 362 charges the defendant with bookmaking in violation of N.J.S. 2A:112--3, N.J.S.A. which is a similar charge to that contained in the first count of indictment No. 92. The only difference in the two indictments is that in the last-mentioned indictment there are additional defendants named, these persons having been set forth in indictment No. 92 as being unknown except as to the co-conspirator Howard W. Cobbs. As to this defendant the offenses charged are the same in both indictments. Apparently the newly discovered evidence referred to by the prosecutor in the motion for a mistrial during the trial under indictment No. 92 is the securing by the State of the names of those persons referred to in that indictment as unknown.

Both indictments were presented to and assigned by Judge Walter L. Hetfield, III, assignment judge for Union County, to the County Court for trial.

The defendant, Domingos Preto, now moves to dismiss indictment No. 362 on the ground that this indictment subjects him to double jeopardy, said defendant contending that the granting of the mistrial motion during the trial of indictment No. 92 results in acquittal therein and double jeopardy under any charge growing out of the same identical act or acts as set forth in indictment No. 362.

The court at this point notes that indictment No. 92, referred to herein, is still pending and no judgment has been rendered therein as it still remains in its mistrial status. There is no motion here addressed to indictment No. 92; however, the disposition of this motion must, out of necessity, concern and include the legal status of indictment No. 92. The court, for the purposes of this motion and complete adjudication, will determine the legal status of indictment No. 92.

It has been held in this State that the pendency of an indictment or indictments is not double jeopardy unless proceedings creating such jeopardy have attached under another indictment for the same offense, State v. Faulks, 97 N.J.L. 408, 117 A. 476 (Sup.Ct.1922); State v. Janiec, 20 N.J.Super. 471, 90 A.2d 98 (App.Div.1952), so that as to indictment No. 362 its mere pendency does not create double jeopardy unless such jeopardy exists as a result of a legal conclusion that the mistrial granted during the trial of indictment No. 92 amounts to a previous acquittal of the same offense alleged under both counts of indictment No. 362.

There is some misunderstanding in the cases concerning the meaning of the pleas of Autrefois acquit, autrefois convict and Res judicata. The plea of Autrefois acquit is a plea to bar further criminal action on the ground that the defendant has already been charged, tried and has been acquitted of the same offense. The plea of Autrefois convict is a plea to bar further criminal action on the ground that the defendant has already been charged, plead or tried and convicted of the same offense. Res judicata, a phrase used in civil law, is a plea that there has been a final judgment, in a cause involving the same parties, as the result of a hearing on the merits, by a court of competent jurisdiction, as to the issues presented in the proceedings to which the plea is addressed; Black's Law Dictionary (4th ed.), pages 170 and 1470 (1951); State v. Locklear, 16 N.J. 232, 108 A.2d 436 (1954). We are herein concerned with a plea of Autrefois acquit, commonly known, recognized and referred to in our law as one of the pleas of double jeopardy.

The plea of double jeopardy is an ancient principle and was well established and rooted in the common law. It has its basis not only as a principle in the law, but also as a principle on moral grounds to the effect that right-thinking people would regard a person being tried more than once for the same wrong, unfair and improper. The principle is a part of our Federal and State Constitutions. In our Federal Constitution it is set forth in the Fifth Amendment in the following language: 'Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.' In our State Constitution it is set forth in Article I paragraph 11, in the following language: 'No person shall, after acquittal, be tried for the same offense.'

The controlling legal question on which our decision must rest is whether, under the mistrial circumstances occurring in the trial of indictment No. 92, there was in legal effect an acquittal of the defendant.

The varying phraseology of the constitutional guaranties against double jeopardy, and the debates which occurred in the various constitutional conventions concerning this phraseology, indicates and suggests that a former conviction, that is, the plea of Autrefois convict, raises varying problems from those that result from a former acquittal under the plea of Autrefois acquit. Although the result is the same in legal effect insofar as any later criminal action is concerned, the real basis of the two pleas are somewhat different. It is very evident that in the former plea there is an actual conviction, and under the legal and moral concept of what is right or wrong, society believes that the defendant should not be punished twice for the same offense. The plea of former acquittal is based on a concept and belief that an accused person should not be repeatedly harrassed and subjected to trials for the same offense. There appears to be no question that this principle is deeply rooted in our judicial system. However, just when a person has been put in double jeopardy during a trial on a charge of committing a crime is not certain. This is a question upon which the authorities are not in agreement, and there is a wealth of material on the subject. There is an article on the subject containing a history of the pleas and a compilation of the cases written by the Hon. John L. Bigelow, formerly a judge of the Superior Court of this State, and contained in 11 Rutg.L.Rev. 487. There is also editorial comment concerning the plea of Autrefois acquit as affected by an unwarranted discharge of a jury and its being tantamount to acquittal in 9 Rutg.L.Rev. 581. The cases in this State on the subject are reviewed and the article indicates that the discharge of a jury in a criminal case before a verdict is reached, in the absence of an 'absolute necessity' therefor, equals an acquittal of the accused and may be pleaded in bar to a further prosecution for the same offense as the current status of the law in this State. This article comments and summarizes the various cases in this State on the subject, including the Locklear and Midgeley cases herein cited.

It is generally held in the United States that the accused is put in jeopardy as soon as the jury is sworn, and there must be a manifest necessity in terminating the trial to avoid an acquittal; 22 C.J.S. Criminal Law § 249, p. 386. In this State the law is as definite and certain as the legal rule nationally indicated; however, it substitutes for the word 'manifest' the word 'absolute,' and follows the 'absolute necessity' rule to the effect that if the jury is discharged, without the consent of the accused, for a reason legally insufficient and without an absolute necessity for it, the discharge is...