State v. Shoopman

• Decision Date: 20 June 1952
• Docket Number: No. A--164,A--164
• Citation: 20 N.J.Super. 354,90 A.2d 43
• Parties: STATE v. SHOOPMAN.
• Court: New Jersey Superior Court — Appellate Division

Page 354

20 N.J.Super. 354

90 A.2d 43

STATE v. SHOOPMAN.

No. A--164.

Superior Court of New Jersey

Appellate Division.

Argued May 5, 1952.

Decided June 20, 1952.

Harold T. Parker, Mt. Holly, argued the cause for plaintiff-respondent.

James M. Davis, Jr., Mt. Holly, argued the cause for defendant-appellant.

Before Judges EASTWOOD, BIGELOW and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.C.C.

The problem here is whether or not defendant's plea of Autrefois acquit to an indictment charging him with causing the death of one Juanita Shoopman in violation of R.S. 2:138--9, N.J.S.A., should have been sustained.

On February 15, 1951 the defendant, while driving an automobile on a public highway in the Township of Mansfield, Burlington County, New Jersey, was involved in an accident. On the same day a complaint was made in the Mansfield Township Municipal Court charging him with violation of section 96 of the Motor Vehicle Act (R.S. 39:4--96, N.J.S.A.) in that he drove an automobile carelessly and heedlessly in wanton disregard of the rights and safety of others. Trial thereon on March 15, 1951 resulted in acquittal.

On May 24, 1951 an indictment was returned against him, charging that on February 15, 1951 in the Township of Mansfield he 'unlawfully did cause the death of one Juanita Shoopman, by driving an automobile carelessly and heedlessly in wanton disregard of the rights and safety of her, the said Juanita Shoopman, contrary to the provisions of R.S. 2:138--9.'

To this indictment the defendant interposed a plea of Autrefois acquit which the prosecutor moved to dismiss. The plea asserted, among other things, that the complaint for reckless driving was based upon the same acts, omissions and evidence as the indictment. The prosecutor by his motion, which is the modern counterpart of a demurrer, in legal effect admitted this statement; likewise in his brief and on the oral argument he conceded that, except for the additional proof of the death, the evidence in support of the indictment would be the same as that offered in furtherance of the reckless driving charge.

The trial court dismissed the plea and this appeal followed.

Article I, paragraph 11 of the Constitution of 1947, which follows the substance of the Fifth Amendment of the United States Constitution, provides:

'No person shall, after acquittal, be tried for the same offense.'

The critical and decisive word is 'same.' It is only when an effort is made after acquittal to prosecute the defendant for the 'same' offense, as that word has been defined in many cases, that the constitutional bar attaches.

The test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make out a single offense where two are defined by the statutes. Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1914); State v. Labato, 7 N.J. 137, 80 A.2d 617 (1951).

In the case under consideration are the offenses identical in law and in fact? Would an acquittal of the one show that the defendant could not have been guilty of the other (State v. Cooper, 13 N.J.L. 361, Sup.Ct.1833)?

The reckless driving section of the Motor Vehicle Act, supra, says:

'A person who drives a vehicle on a highway carelessly and heedlessly, in willful or wanton disregard of the rights or safety Of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving * * *.' (Italics ours)

The statute on which the indictment is based, is part of the Crimes Act and follows:

'Any person who Shall cause the death of another by driving any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of a misdemeanor;'. (R.S. 2:138--9, N.J.S.A.) (Italics ours)

While the language used is substantially the same in the two enactments, the Motor Vehicle Act concerns itself with a manner of driving which is declared to be reckless; it is designed to safeguard the public generally against such driving without regard to whether or not any individual member of the public is actually injured or killed as the result thereof. Violation is not a crime but calls for the imposition of a penalty on the offender. The Crimes Act adopts substantially the definition of reckless driving laid down by the Motor Vehicle Act but ordains that when such driving causes the death of a particular person, guilt of a crime comes into being. Thus it is obvious that a driver can be guilty of reckless driving without ever having come in contact with any person or property. Proof alone of the condemned manner of driving establishes the offense. A motorist who drove at a high rate of speed down a busy thoroughfare, cutting in and out of a line of traffic, might well be declared in violation of the act on a finding that such conduct constituted a wanton disregard of the rights or safety of others. The offense would be complete before injury or death was inflicted upon any one. Under these circumstances proof of the death would not be a prerequisite to a conviction for reckless driving; such proof could be omitted entirely or it could be proved simply to characterize the manner of driving, without affecting the possibility of a conviction or the propriety thereof.

This view finds some support in State v. Rodgers, 91 N.J.L. 212, 102 A. 433, 435, (E. & A.1917). There the defendant was charged with driving an automobile on a public street while under the influence of intoxicating liquor in violation of L.1913, c. 67, p. 103, which declared such person to be a disorderly person. His conviction was set aside in the Supreme Court on the ground that the evidence showed him to be guilty of the offense of public nuisance, indictable at common law, and hence the recorder had no jurisdiction. The Court of Errors and Appeals reversed the Supreme Court, saying, in part:

'It will be seen, therefore, that the statutory offense of driving an automobile upon a public street while under the influence of intoxicating liquor differs from a public nuisance in this: The former is complete when the thing prohibited by the statute has been done, whether with or without inconvenience or annoyance to the public; whilst the latter offense is not committed unless and until there is an inconvenience or annoyance to the public.'

On the other hand, under the Crimes Act the careless and heedless driving in willful or wanton disregard of the rights of others is related to its effect upon a particular person and if it is responsible for his death a crime exists. A conviction of reckless driving cannot be had under an indictment for death by reckless driving. Cf. State v. Thomas, 65 N.J.L. 598, 48 A. 1007 (E. & A.1901). Original jurisdiction over violations of the Motor Vehicle Act is in the municipal courts. (Cf. Commonwealth v. Bergen, 134 Pa.Super. 62, 4 A.2d 164, at page 168 (Super.Ct.1939). However, a defendant might well be acquitted of the crime and yet be guilty of the violation of the act, and subsequently tried and convicted thereof in the municipal court. As already indicated, the offense of reckless driving is or may be complete before any injury or death occurs. Moreover, while the contributory negligence of the deceased is not a defense to the indictment, yet his conduct at the time of the accident may be shown and if that conduct is found by the jury to have been the efficient, producing cause of the death, the defendant is entitled to an acquittal even though he was driving at the time in willful or wanton disregard of the rights of the public generally. State v. Kellow, 136 N.J.L. 1, 53 A.2d 796 (Sup.Ct.1947), affirmed 136 N.J.L. 633, 57 A.2d 389 (E. & A.1948); State v. Oliver, 107 N.J.L. 319, 153 A. 399 (E. & A.1931).

In People v. Herbert, 6 Cal.2d 541, 58 P.2d 909, 910 (Sup.Ct.1936), an almost identical problem was presented. There the defendant was charged with reckless driving under a statute which said that "'any person who drives any vehicle upon a highway in so negligent a manner as to indicate either a wilful or a wanton disregard of the safety of persons or property shall be guilty of reckless driving"'. Gen.Laws 1931, Act 5128, § 121. He pleaded guilty and was fined. Subsequently he was indicted for manslaughter because of a death resulting from the same transaction. The prosecutor stipulated that the charge of manslaughter was based upon the identical facts upon which the defendant had been sentenced on his plea of guilty to reckless driving. Autrefois convict was then pleaded. The Supreme Court affirmed the denial of the defense and approved this statement of the lower court:

"'It is true that on November 26 the facts were such that in a proper forum, the defendant then might have been prosecuted for manslaughter in the killing of Briscoe. In such prosecution he would have been placed in jeopardy, not for the separate offense of reckless driving, but for causing the death of Briscoe, by means of reckless driving plus the hitting of Briscoe. Under the manslaughter charge, he could not have been acquitted of manslaughter and convicted of reckless driving. Under the misdemeanor charge in the police court, he could not have been convicted of manslaughter.

"'In the case at bar, defendant's reckless driving of his car, that is, 'in so negligent a manner as to indicate a wilful or a wanton disregard of the safety of person or property,' happened to be an act committed in violation of law; but for the purposes of trial of the instant case this conduct of the defendant, when proved, was merely part of the evidence of his unlawful killing of a human being which in this instance was done 'in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."' The court said...