State v. Thomas

• Decision Date: 05 April 1971
• Citation: 276 A.2d 391,114 N.J.Super. 360
• Parties: STATE of New Jersey, Plaintiff, v. Lamont THOMAS, Defendant. (Criminal)
• Court: New Jersey Superior Court

Page 360

114 N.J.Super. 360

276 A.2d 391

STATE of New Jersey, Plaintiff, v. Lamont THOMAS, Defendant.

Superior Court of New Jersey, Law Division (Criminal).

April 5, 1971.

Steven Perskie, Asst. Public Defender, for defendant (Morris R. Goldsmith, County Public Defender, attorney).

James McGeary, Asst. Prosecutor, for plaintiff (Robert McAllister, Prosecutor, attorney).

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

This matter is before the court on defendant's motion to dismiss an indictment charging murder.

On or about June 5, 1969 Fannie Murray was the victim of a robbery and physical wounds apparently inflicted during the commission of that robbery. The defendant was subsequently indicted for the crimes arising out of that incident. The indictment (I 689--68--M) charged atrocious assault and battery, assault with intent to rob and robbery; thereafter, on October 27, 1969, subsequent to an initial plea of not guilty, defendant, with the aid of counsel, entered a Retraxit plea of guilty to the first count, to wit atrocious assault and battery. The assistant prosecutor indicated at the time of the Retraxit plea that the prosecutor would move, at the appropriate time, to dismiss the remaining counts of the indictment. Sentence on the first count followed on December 5, 1969, defendant being sentenced to an indeterminate term in the New Jersey Reformatory; the commitment was directed to the Yough Reception and Correction Center at Yardville. Fannie Murray died on January 23, 1970. Pursuant to a motion made by the prosecutor, an order was signed by the court on September 15, 1970 dismissing the second and third counts of the indictment. On October 29, 1970 the grand jury returned the present indictment (I 179--70--S) charging defendant with murder. ¹ Counsel for defendant now moves, consistent with R. 3:10--2, to dismiss the present indictment, contending that trial upon it is barred by the double jeopardy guarantee's proscription against prosecution for 'same offenses.'

Our Constitution provides that 'no person shall, after acquittal be tried for the same offense.' N.J.Const. (1844), Art. I, par. 10; N.J.Const. (1947), Art. I, par. 11. New Jersey's constitutional guarantee, although narrow in its phraseology, was not meant to restrict the common law protection, but rather to insure against the contention that a defendant may be entitled to immunity from further trial where his first trial ends, nor in acquittal, but in jury disagreement or other indecisive disposition. State v. Roller 29 N.J. 339, 149 A.2d 238 (1959); Newark v. Pulverman, 12 N.J. 105, 95 A.2d 889 (1953). For the common law history of the double jeopardy guarantee, see 4 Blackstone, Commentaries, 335; State v. Littlefield, 70 Me. 452 (Sup.Jud.Ct.1880); State v. DiGiosia, 3 N.J. 413, 70 A.2d 756 (1950).

The courts of this State have employed three distinct tests to determine whether a defendant is threatened with prosecution for the same offense. The 'same transaction' test determines what are same offenses by viewing the underlying act of the wrongdoer and ascribing all the results naturally flowing therefrom to the underlying act. State v. Cooper, 13 N.J.L. 361 (S.Ct. 1833); State v. Rosa, 72 N.J.L. 462, 62 A. 695 (E. & A. 1905); State v. Mowser, 92 N.J.L. 474, 106 A. 416 (E. & A.1919); see also State v. Fitzsimmons, 60 N.J.Super. 230, 158 A.2d 731 (Cty.Ct.1960), and State v. Hoag, 21 N.J. 496, 122 A.2d 628 (1956), aff'd 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1957).

The 'lesser included' offense test holds that the finding of same offense is satisfied when there has been an acquittal or conviction upon a necessary ingredient of a criminal act which is presently threatening the accused with prosecution. State v. Midgeley, 15 N.J. 574, 105 A.2d 844 (1954); State v. Greely, 30 N.J.Super. 180, 103 A.2d 639 (Cty.Ct.1954), aff'd 31 N.J.Super. 542, 107 A.2d 439 (App.Div.1954); State v. Fitzsimmons, 60 N.J.Super. 230, 158 A.2d 731 (Cty.Ct.1960); State v. Dixon, 40 N.J. 180, 191 A.2d 39 (1963); State v. Wolf, 46 N.J. 301, 216 A.2d 586 (1966).

Holding that two acts are the same offenses by the use of the 'same evidence' test requires a determination whether the evidence necessary to sustain the second prosecution would have been sufficient to secure a legal conviction on the first prosecution. State v. Midgeley, 15 N.J. 574, 105 A.2d 844 (1954); State v. DiGiosia, 3 N.J. 413, 70 A.2d 756 (1950); State v. War, 38 N.J.Super. 201, 118 A.2d 553 (Cty.Ct.1955); State v. Hoag, 21 N.J. 496, 122 A.2d 628 (1956), aff'd 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1957); State v. Leibowitz, 22 N.J. 102, 123 A.2d 526 (1956); State v. Francis, 67 N.J.Super. 377, 170 A.2d 476 (1961).

Our Supreme Court has held that no test is absolute in its acceptability; in various fact situations one of the various tests may properly be applied. State v. Roller, 29 N.J. 339, 149 A.2d 238 (1959).

Our courts have not had occasion to decide what test is to be applied where the victim dies after judicial determination with regard to the initial criminal act, but cases from other jurisdictions are unanimous in holding that where the victim dies after a conviction for the underlying wrongdoing, double jeopardy principles will not bar prosecution for the homicide. Carmody v. Seventh Judicial Dist. Court, 81 Nev. 83, 398 P.2d 706 (Nev.Sup.Ct.1965); see 11 A.L.R.3d 828.

The most cited case is Commonwealth v. Roby, 12 Pick. 496 (Mass.Sup.Jud.Ct.1832), where defendant wounded his victim and was indicted for felonious assault with intent to kill. After disposition of the assault indictment the victim died. A plea of Autrefois convict to bar the homicide indictment was rejected, the court holding that defendant had not previously been in jeopardy for the crime of murder:

The indictment for murder necessarily charges the fact of killing, as the essential and most material fact, which gives its legal character to the offense. If the party assaulted, after a felonious assault, dies within the year and day, the same act, which till the death was an assault and misdemeanor only, though aggravated, is by that event shown to have been a mortal wound. The event, strictly speaking, does not change the character of the act, but is related back to the time of the assault, and the same act, which might be a felonious assault only had the party not died is in truth shown by that event to have been a mortal wound; and the crime, which would otherwise have been an aggravated misdemeanor, is thus shown to be a capital felony. The facts are essentially different, and the legal character of the crime essentially different. (at 504--505)

The difficulty in Roby is determining on what basis the court determined that the assault and murder were not 'same offenses' within the purview of the double jeopardy clause. Application of any and all of the traditional tests would have necessitated a finding that the assault and murder were 'same offenses.' An examination of the opinion discloses that the court decided the issue by use of its own test. Notwithstanding Dictum, acknowledgment of the same evidence test to determine same offenses, it is clear that the court's holding was based upon a hybrid test to determine same offenses, or it was based upon an exception to any of the traditional tests.

Not departing from the approach in Roby, the collected cases indicate that where the victim dies subsequent to a disposition of an earlier indictment charging the crime which is the efficient cause of the victim's death, a new crime legally and factually distinct has been committed. And although the murder resulted from the same act which constituted the basis of the previous indictment, double jeopardy would not attach. Commonwealth v. Evans, 101 Mass. 25 (Sup.Jud.Ct.1809); State v. Littlefield, 70 Me. 452 (Sup.Jud.Ct.1880); Southworth v. State, 98 Fla. 1184, 125 So. 345 (Fla.Sup.Ct.1929); Medlock v. Commonwealth, 216 Ky. 718, 288 S.W. 670 (Ct.App.1926); Centers v. Commonwealth, 318 S.W.2d 57 (Ky.Ct.App.1958); Carmody v. Seventh Judicial Dist. Court, 81 Nev. 83, 398 P.2d 706 (Nev.Sup.Ct.1965); Commonwealth v. Vanetzian, 350 Mass. 491, 215 N.E.2d 658 (Sup.Jud.Ct.1966).

The leading federal case is in accord, and not inconsistent with, the rational enunciated in the state decisions. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1911). In Diaz defendant wounded his victim; after sentence upon a charge of assault and battery the victim died. The United States Supreme Court, citing as authority Roby and Littlefield, held that defendant should face prosecution for murder:

The homicide charged against the accused in the Court of First Instance was assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter, the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense. (at 448--449, 32 S.Ct. at 251)

In the present case defendant pleaded guilty to atrocious assault and battery before the victim died. In this situation what test is this court bound to employ in determining 'same offenses'? Defendant maintains that the court is bound by the Fifth Amendment to the United States Constitution to employ the same evidence test. Applying this test, evidence necessary to sustain a murder conviction would also sustain a conviction for atrocious assault and battery--prosecution for the murder indictment would then be barred. I do not agree. In 1969 the Fifth Amendment guarantee against double jeopardy was held applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1...