State v. Silver
| Decision Date | 19 January 1925 |
| Docket Number | No. 29.,29. |
| Citation | 127 A. 545 |
| Parties | STATE v. SILVER et al. |
| Court | New Jersey Supreme Court |
Error to Supreme Court.
Louis Silver and Izzy Presser were convicted of conspiracy to commit crime, and manufacturing burglars' Instruments with the view of carrying out that conspiracy. Judgment of conviction was affirmed in the Supreme Court, and they bring error. Affirmed.
The following is the per curiam opinion in the court below:
The defendants were convicted on an indictment charging them with conspiracy to commit crime, with the view of carrying out that conspiracy, unlawfully manufacturing burglars' instruments for the purpose of opening safes and stealing therefrom money and other property. They had been tried and convicted on an earlier indictment, charging them with conspiracy to manufacture burglars' tools, for the purpose of breaking and entering the safe of one Germanus. That conviction was set aside by this court, and the record remitted to the court of quarter sessions, "to be proceeded with in accordance with the practice of said court."
When the case at bar was moved, the defendants interposed a plea of autrefois acquit, and after a hearing on that plea, the court directed a verdict upon it in favor of the state. The contention now is that this direction was error, in that by putting the defendants on trial on this second indictment, they were twice put in jeopardy. The same situation existed in the case of Smith and Bennett v. State, 41 N. J. Law, 598, where it was held that the reversal of a conviction, and the sending back of the record for the purpose of a new trial, was not in contravention of any constitutional right of the defendants. It is also to be observed that the charge under the present indictment is fundamentally different from that contained in the first case; and the state had a right to delay the moving of a second trial on the first indictment, pending the final determination by this court of the issues presented on the second indictment.
It is also urged that the trial court erred in permitting the state's witness, Brice, to be interrogated with relation to testimony given by him on the trial of the earlier indictment, it appearing that on the present trial his memory was quite defective, his statement being as to many facts that he had no recollection, while on other occasions his utterances were contradictory of the testimony given on the previous trial. The situation thus produced is not within the...
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