State v. BoeningState v. Boening
Defendant appeals from an order denying his motion to vacate the sentence imposed for armed robbery under the third count of an indictment returned by the Cape May County grand jury in 1955.
The indictment charged that defendant, on July 2, 1955, (1) carried a concealed revolver, in violation of
At the time of sentence two months later defendant stated he would like to change his plea; he admitted сarrying a concealed weapon but denied taking part in the armed robbery. His story was that he sat in an automobile outside the hotel while his companions went inside and committed the robbery. The court refused to allow a change of plea and proceeded to impose the following State Prison sentences: 12-13 months for carrying a concealed weapon, 5-7 years for аtrocious assault and battery, and 12-15 years for armed robbery, the sentences to run concurrently. The trial judge said, however, that he would permit defendant to change his plea if upon investigation it shоuld appear there was any scintilla of justification for withdrawal of the guilty plea. He assigned counsel to consult with the prisoner.
Defendant and his assigned counsel came before the County Cоurt a week later. Counsel was invited to move, if he so desired, to withdraw the plea and go to trial. He declined to do so and stated that he had discussed the matter with defendant and it was the latter‘s desirе to let the plea and sentences stand. Defendant concurred.
In August 1958, more than 2 1/2 years later, defendant moved to vacate the armed robbery sentence on the ground that it constituted double punishment for a single offense. The application was denied and this appeal followed.
Assigned counsel points out that the pleas and sentences were given in the same order in which thе crimes charged appear in the indictment. From this basis he launches two arguments: (1) conviction for a crime which is a component
The State raises the preliminary objection that the defеnse of double jeopardy was available to defendant at the time he entered his plea, and his failure to object at that time constituted a waiver, citing
Under our former practice, thе defense of double jeopardy had to be asserted by a written plea of autrefois acquit or convict. State v. Mark, 23 N.J. 162, 166 (1957). When not entered in writing, it was waived. State v. Tumbiolo, 28 N.J. Super. 231, 239 (App. Div. 1953), certification denied 14 N.J. 495 (1954); certiorari denied 347 U.S. 948, 74 S.Ct. 647, 98 L.Ed. 1095 (1954). The requirement of a formal written plea has been eliminated and the practice of motion before trial substituted.
It has been held that the defense of former jeopardy may be waived and that such waiver is binding and conclusive, In re Hall, 94 N.J. Eq. 108, 117 (Ch. 1922). But waiver requires the intentional relinquishment of a known right. West Jersey Title, etc. Co. v. Industrial Trust Co., 27 N.J. 144, 152 (1958). Defendant did not have the benefit of counsel (although counsel was offered and rejected) at the time he made his plea. It cannot be said that he knew of
It should nonetheless be pointed out that
It is defendant‘s contention that New Jersey is firmly committed to the principle that if a minor offense is embraced within a higher crimе as a constituent element or component part thereof, a conviction of the minor offense will bar a prosecution for the higher crime. Undoubtedly this is true, and the cases he cites so hold. State v. Cooper, 13 N.J.L. 361 (Sup. Ct. 1833); State v. Mowser, 92 N.J.L. 474 (E. & A. 1919); State v. Labato, 7 N.J. 137 (1951); State v. Williams, 30 N.J. 105 (1959). From this he proceeds to argue that atrocious assault and battery is a component part of the greater offense of armed robbery, so that once having been convicted of the former, he could not be prosecuted for the latter because this placed him in jeopardy a second time.
Defendant relies upon the Labato case, above, which states the criteria for determining whether thе plea of double jeopardy will bar further prosecution where a person is first convicted of the lesser offense:
“* * * 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. * * *
Where `the fact prosecuted’ is the same in both prosecutions, though the offenses differ `in coloring and degree’ there is prior jeopardy. * * * It is the evidence, not the theory of the pleader, that determines the issue. * * *” (7 N.J., at pages 144-145)
The “same evidence” test has been adоpted by our courts in a number of cases since Labato. Application of that test shows defendant‘s contention to be without merit.
It is clear and apparently undisputed that the charges of atrociоus assault and battery and armed robbery are distinct offenses, each separately defined by statute and case law and comprising elements not necessarily required by the other.
Robbery is defined by
In the present case we knоw nothing about the facts other than those stated in the indictment or as might have been revealed in the brief colloquy that took place on the day of sentence. Defendant would have us assume that the armed robbery “may” have been executed in such a way that the crime of atrocious assault and battery was also present. The possibility suggested is that defendant, while armed with a revolvеr, struck, wounded and maimed the hotel clerk and then and there took money from his person and custody. But for all we know, defendant may
But in addition to the “same evidence” test of Labato our courts have on occasion adopted another approach, known as the “same transaction” test, which “broadly suggests that the plea of double jeopardy should be sustained where the charged offenses are part of the same criminal transaction.” State v. Roller, 29 N.J. 339, 345 (1959). See, for example, State v. Pennsylvania R.R. Co., 9 N.J. 194 (1952); State v. Cosgrove, 103 N.J.L. 412 (E. & A. 1927); State v. Mowser, 92 N.J.L. 474 (E. & A. 1919); State v. Fitzsimmons, 60 N.J. Super. 230 (Cty. Ct. 1960).
The separate counts for armed rоbbery and atrocious assault and battery do not, however, spell out an identity of criminal transaction. The same physical act or acts did not necessarily give rise to both; as indicated, a brutаl assault may have been followed by the act of armed robbery some minutes later, or there may have been an armed robbery followed later by a maiming or wounding inflicted out of sheer viciousness or fear of apprehension. In either case, the “same transaction” test would not be satisfied.
Affirmed.