*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW HOAG, WILLIAM DEFENDANT-APPELLANT. Argued Decided May March *2 Knowlton, Bar, argued Mr. E. of the Iowa Robert Warren, George attorney). cause for appellant (Mr. Arnold, County Mr. William J. Assistant Prose- Bergen Calissi, cutor, W. argued (Mr. Guy the cause for the State *3 Prosecutor, Mr. C. Brud- attorney; William Bergen County niclc, Prosecutor, the Special Assistant on brief).
The the opinion of court was delivered by p. At in the afternoon J. about Wachenfeld, m. 20, 1950, three one of September patrons, of or four whom the Tavern Elmer were seated at bar of Yager, Gay’s S. Fairview, New beer sipping Boulevard Bergen Jersey, on of a The game. tranquility a telecast baseball observing a men, carrying three each interrupted by of scene was of tavern. One the front door through gun, entering “This is a stick-up, every- them announced: brusquely patrons, line wall.” body against together up tavern, told, to do as were proceeded they the owner stick-up shoves administered slaps accelerated by wall, lined each was relieved up against men. Once and then taken into the kitchen. and money of his valuables floor, their hands and legs being were placed They left mission the robbers accomplished, Their bound. unimpeded. made a get-away tavern and gives recited above pattern not uncommon factual law growing rise, arresting question this appeal, out of taken the de- legal proceedings subsequently against fendant, who the below was satisfied jury beyond reason- able doubt was one of the robbers.
Within matter of weeks after the robbery, the victims were shown photographs criminals known to have engaged in activities similar to those Two of the described above. victims identified the man, photograph present defendant, as one who had About engaged robbery. later, year the defendant was the New apprehended by York police authorities for another for offense returned prosecution here.
Subsequently, returned Bergen County grand jury three indictments, each counts, two containing against defendant, the first count armed being for specific individual and the second count for con- carrying cealed weapon. reason, For some which does not appear us, record before no indictment was returned against the defendant armed having robbery upon committed Elmer S. the victims named in the indictments Yager; were limited to Patsy Caseio, Louis and Charles Capezzuto, Galiardo.
On 26 and May 27, 1952, in- trial was had on the three dictments, indictment-victims, Caseio, and each three Galiardo, Capezzuto was called to the chair by witness However, the State. on the stand they either disclaimed ability to the defendant or identified him identify positively as not been one of the having robbers. Each of these three witnesses recanted his prior positive identification of the *4 defendant made the use his The through photograph. witness, State was able to produce only one who Yager, an identification the gave unqualified defendant at the trial. ' alibi, The an defense was but it was unsupported by any other than the witness defendant. court,
The trial after the concealed dismissing weapon indictments, the counts of three submitted the ease to the returned a verdict of not jury, guilty. as to stimulated the trial comment
Probably judge’s defendant, ap the obvious referred to guilt a mat brief, within pellant’s County the Bergen grand jury, indict ter after the returned two-count days acquittal, count, him, ment the the first defendant against charging Yager, with armed Elmer S. robbery upon the commission of weapon in the second count concealed carrying N. J. A. S. (now violation of N. J. S. 2:176-41 2A :151—41). moved for
However, before the new could be indictment trial, New York incarcera- the defendant was returned to jurisdiction. within As tion for offense committed under trial indictment did not result, Yager get 18, 1954. until October way witness, only trial, At the second State offered identified the defendant as one positively Yager, again who tavern had entered the September of the three robbers who attacked held him After the defense had up. 1950 and and incidents more places occurring recall ability to Yager’s he on redirect examination was previously, than years four remember the defendant on the afternoon asked he could how He replied “Anybody September impressively: them, would sure remember they have'a stuck into gun would face, in front.” directly the fellow’s testified on behalf The three victims of other Their testimony at second trial. was defendant had at the given that which first trial. they similar to his offered own behalf again defendant took stand witnesses were offered to this support an alibi defense. Fo they testified were unavailable reason defense, having he whereabouts. unknown of death or on both returned a verdict counts guilty The jury the concealed sentencing, weapon Eollowing indictment. by the trial judge. dismissed count was ordered appeal Appellate permitted was defendant of con- from person judgment an indigent Division As on the first count of indictment. viction on there as to raised court, no question this appeal to
501 guilt innocence, defendants or limited appeal being solely trial, to the whether the second question Yager on indictment, violated our constitutional prohibition against double a also jeopardy, defense which the defendant had raised at affirmed, the trial. The Division State Appellate v. Hoag, 35 N. J. 555 and the Super. 1955), Div. (App. defendant appealed to us see R. R. 1:2-1 right, (a), and as an indigent person R. R. 1:2-7. The pursuant appeal was originally considered without oral argument; we subsequently counsel to New assigned the defendant. briefs were presented and counsel before argued cause us at length.
The de- constitutional is advanced here question by fendant form: “The basic issue this following ease is whether the State an individual may subject separate trial for the robbery of each victim when the rob- bery of all was at the same place.” time at the same
The New Constitution Jersey of 1947 states the prohibition against double in the same as did jeopardy language 1844 Constitution: person shall, acquittal, “No after be tried for the same offense.” Constitution, I, par.
N. J. Art. N. J. Constitution 11. See I, par. Art. difficulty, course, lies in ascertaining what offense,” meant “the concept constitutional same conviction, of which will a second trial. acquittal, preclude contexts, as, has arisen in question many example, where a accused of minor offense is person acquitted he is the same facts in more again charged aggravated Lobato, form. See State v. J. 146 N. State (1951); 11 N. J. 333 Shoopman, Cooper, State v. (1953); Mowser, J. L. 361 State v. 92 N. J. L. 1833); N. (Sup. 1919). may & Double also be called (E. A. multiple into act involves play single consequences, where experienced usually being number consequences Cosgrove, J. See State 103 N. L. 412 individuals. *6 Co., & 9 N. J. A. State v. R. (E. Pennsylvania R. 1927); 194 (1952).
The test in this to re widely most employed jurisdiction solve the double in such is circumstances jeopardy question whether the sustain second in necessary evidence to dictment have would been sufficient to secure convic legal DiGiosia, 413, tion on first. State v. 3 N. J. 419 (1950); Lobato, J., 144; State v. 7 at State v. page N. supra, Shoopman, J., 11 N. at supra, page that the application defendant acknowledges the “same test in a denial the alleged evidence” results sub Eor the double violation in the ease judice. evidence support Yager obviously needed to indictment not would have been sufficient secure conviction indictments, indictments three earlier inasmuch as latter three from charged taking property forcible of different erent individuals. diff Nevertheless, it is factual urged present pattern falls within the act” fact “single category, despite “offense,” in robbed, single several were but persons sense, was the defendant constitutional committed he It is said the “same evidence” not be retried. may are multiple is in this where there jurisdiction test modified act.” v. Cosgrove, supra; victims of a See State “single Co., State v. R. R. Pennsylvania supra. avail may that defendant
However, we cannot concede any this under recognized concept himself of the case Eor there was the fact remains that of double jeopardy. which simul- committed this defendant but a act” “single several At more, affected individuals. taneously, and without the more element of least, subjective aside very putting fear, with which the victims crime each of placing in each indictment charged required the defendant independent respect act separate commission e., of the victim’s victim, taking prop- i. the forcible to each it was in fact committed precise, Additionally, erty. to the other time, either prior subsequent at a different in the other indictments. As was charged acts independent
503 said in People 92, 97 Cal. P. Lagomarsino, 2d 217 App. 2d 129 124, Ct. : (D. App. 1950) may involving against “Whatever exist conflict in the cases offenses
property, against persons, when we come to offenses there is more unanimity. Particularly eases, robbery is this true the offenses majority, certainly rule, here involved. The the better separate against person there Obviously, ais offense committed each property robbed. persons, several where is removed person, separate separate from each involves a act and a intent for each victim.” See also People Rodgers, 437, 102 Misc. N. Y. S. 86 affirmed (Sup. 1918), Div. 171 N. Y. S. App. 1918), Div. N. (App. affirmed 226 Y. E.N. *7 882 (Ct. App. 1919).
The has subject matter evoked and many con- divergent has reactions and a host of comment. flicting engendered See, 65 e. Yale L. J. 339 g., (1956); Lugar, “Criminal ” Law, Double and Res Judicata Iowa Jeopardy 39 L. Rev. Nevertheless, 317 in (1954). Judge Jayne, below, two short stated and the paragraphs suecintly applied basic reasoning and of the New to the philosophy Jersey decisions case sub His judice. which coincides with our own appraisal, views, was N. at J. : (35 Super., page 560) the “Neither identical act nor same the evidence norms avail present Conceivably in the defendant the ease. the one act of brandishing pistol menacing might manner have simul- placed taneously Cascio, Capezzuto, Galiardo, Yager in a state intimidation, robbery, of fear and but to constitute the act must necessarily complemented he the additional and successive act of taking person another, money goods personal ‘from the or * * chattels, charged placing At his former trial the was defendant not any Yager money personal taking property in fear and or from him. Surely Yager evidence that the defendant robbed would not be necessary guilt robbing Cascio, Capezzuto, to establish his Yager robbing ingredient Galiardo. was not an essential legally integral alleged part robbing the offenses of the other three.” The conclusion finds in an support imposing array of authority there cited.
504 if that even the
Next, the defendant contends prosecution a second not preclude double does guilty the verdict of not case, jury’s the nevertheless instant encom any fact relitigation trial in the first prevents under the of res judicata. principle verdict passed by S., 237, Ct. 92 L. 575, U. S. 68 S. v. U. 332 See Sealfon 85, 242 U. S. v. Oppenheimer, Ed. 180 U. S. (1948); State, Harris 193 68, Ed. (1916); S. Ct. L. 1941). E. A. R. 980 (Sup. Ga. 17 S. 2d L. trial, it is in the first controverted issue of fact only robbers as one of the said, the defendant identity Tavern, acquitted the first whp jury held since up Gay’s indictments, the State defendant the first three identity cannot the issue of the defendant’s relitigate at man who held he was up inasmuch as robbed Yager, same time and place as the other three. is it is judicata the doctrine of res
Actually, Por, as we invoked here but estoppel. that of collateral several outlined, have already charged offenses and while crimes, indictments constitute and distinct separate under same, cause of parties may State’s action case, That each indictment is a different one. being facts from those precluded only relitigating State Restatement, verdict. which were found first actually Scott, 68; by Judgment,” "Collateral Judgments, Estoppel § *8 1, Harv. L. Rev. 10 (1942). first three indictments the defendant with charged The Cascio, individuals, the from three taking forcible of property Galiardo, them in by and fear. Capezzuto placing indictment, hand, the the de- alleged fourth on other that forcibly take from willfully, feloniously fendant “did * * * Elmer S. wallet the of one one Yager person * * * $50 watch the value of by putting wrist of far Thus, in as the issues were framed by him in fear.” so indictments, the three was the the on first jury’s acquittal on the the verdict inherently guilty not inconsistent last indictment. estab necessarily of alibi plea defendant’s was the
Nor There guilty. verdict not of general the first jnry’s lished by de the acquit did not that the jury to show is nothing aof general or because other ground fendant on some Rodgers, supra; proof. People in the State’s insufficiency Barton, P. 2d 63 (Sup. 2d 5 Wash. State three indictments the trial of the first 1940). Obviously, identity, the defendant’s involved several not questions, just upon question there is way knowing no whether appear verdict turned. Since it does not jury’s as question was based on the determination acquittal first trial, the in the second to which the is estoppel sought See Restate in the second trial. verdict is not conclusive ment, Comment Judgments, § Barton, the case close to factually very
State v. is supra, first for There, prosecuted the defendant was at hand. the murder murder, the State alleging first-degree crime of Eollowing a robbery. was committed the course of during same his State acquittal, prosecuted In dis- were relied in the murder prosecution. acts as in the of acquittal the claim that the judgment posing robbery prose- res judicata murder was prosecution 2d, at : cution, page 67) said P. (105 court prosecution, appellant’s of alibi defense “In the murder fact set out in detail his amended related matters of the various necessarily adjudicated, actually plea special nor can not were appellant limited, contends. were as said that the issues it be Every placed allegation issue the information material guilty, appellant’s state had the burden of not and the possible beyond proof not to determine doubt. It reasonable they acquittal jurors because returned a verdict whether alibi, testimony appellant’s support or for credited the they insufficient as to one state’s evidence that found the reason They charged. have could of the offense or more essential elements appellant testimony utterly disregarded adduced all guilty. yet a verdict of have returned in his defense and therefore, not, judgment res thereon were and the based verdict any particular alibi, judicata appellant’s fact. nor as to other as to appellant judicata They only fact to the ultimate res were guilty accused.” crime of which he was was not *9 Accordingly, we conclude that the State not collaterally estopped by virtue of the first verdict from relitigating defendant's guilt on the Yager indictment.
Finally, the claim is advanced that the re-indictment and retrial of the defendant his following acquittal upon the first three indictments constituted denial of due process of law under the Fourteenth Amendment United States Constitution it because offends fundamental justice. It is contended that to permit piecemeal indictments would State, allow the even though victims, it knows all of the to indict defendant victim, seriatim for each thereby out dragging prosecution the defendant his denying constitutionally protected right trial. This speedy to type of deliberate harassment an over-zealous prosecutor, is said, it should not be tolerated.
Counsel for the appellant his exhibits same philosophy expressed an article he wrote L. (10 Rutgers Rev. 97 if (1955)), any there be urging advantage be derived from use of such inure procedure, it should to the benefit of the prisoner, it has although been always otherwise this jurisdiction.
If procedure this has proven factor in the ad- vigorous law, ministration criminal it has been good not evil, which apparent by is its No long continuance. has been persuasive proffered reason awhy change should be made and still another obstacle placed path of authorities prosecuting prevent escape guilty. made, When and if the it should be the change product aof mandate and legislative by judicial overthrow of We long-continued practice. perceive no constitutional prohibition against procedure pursued here. is affirmed. below judgment J. The determinative
Heher, (dissenting). question the trial the earlier indictments the defendant accusing Cascio, the armed Capezzuto Galiardo, Hoag offenses, was and distinct separate identity perpetrators accused as one of the robbery of the *10 named of the same too, individuals and all as Yager, part the transaction; and of it was resolved the acquittal accused, issue, a on the finding plainest conclusive of the basic trial of on the principles justice relitigation its precluding of the indictment, the after immediately fourth returned at the of laying robbery to armed acquittal, Hoag Yager the same time and place. alibi brethren of
My “Nor was the defendant’s say: of verdict necessarily general established the first jury’s the did not to that jury There is show guilty. nothing or of the defendant some other because ground on acquit there a But in the State’s general insufficiency proof.” doubt, submit, submitted can be no I of the issue to turned, the fact verdict exculpatory and which jury e., in a that was holdup i. the accused’s participation fact. conceded Division to the appendix Appellate submitted which deficient; structure upon
found and “factual- to were considered took points appeal” the defendant’s of counsel for facts” statement of to “form the trial gave and judge State and the accused subscribed Hoag, 1:6-2; R. R. 2:6. State See approval. his thus Div. certification 1955). N. J. Super. (App. severally indictments the three made was the return of individuals, as named the armed robbery charging the indictments offenses, the consolidation distinct following all three indictments trial, and the on acquittal also, 27, 1952; that the judg and trial held 26May jury indictment returned is founded on under review ment armed robbery 17, 1952, Hoag of accusing July occasion, as forth indictments the same set “on Yager as to the details “testified 1951”; Yager that of June indictments; earlier of the three at the trial” holdup trial the later the course of the to and in prior and that “invoked the defense us, the accused now before indictment that there grounds on the double jeopardy or of former “all and of the vic holdup,” and one incident was but “the place,” the same time at were present tims of all testimony victims, “was including” Yager, given at the trial, first when defendant was acquitted.”
On our order transcript of the evidence at the adduced first trial was provided; this was followed by stipulated addendum to the Record, declaring Statement in Lieu of that at the first trial “there was as the fact dispute no victims, that Cascio, said Capezzuto, and Galiardo, as named in indictments, were separate robbed”; as “[djefendant testified alibi the three named victims testified behalf State *11 to the defendant’s identity,” and same victims testi- “[tjhese fied on behalf defendant at trial.” the second
It is said in the a majority opinion that matter “[wjithin weeks after the robbery, the victims shown were photographs of criminals activities,” known to have in engaged [similar] and “Two of the victims identified the photograph of one man, defendant, as who had in present engaged But this was as to either robbery.” not so Cascio or terms, Capezzuto. They each denied in clear and positive at the first trial and the second, that accused was one and there perpetrators was no holdup; earlier surprise at the trial to neutralize their offer identification, of such nor testimony by proof photographic was this made the on the subject interrogation second trial when testified for the accused. State made they no such contention on either trial.
Galiardo, where the operator holdup the tavern occurred, had identified the accused means of a photo- Mm in And he graph shown to New York. testified at the trial, first witness, as the State’s that “This Mr. looks Hoag “I’m like the man that was in not my place,” positive, but I so”; think that he viewed in New police “lineups” two there, in “12 Hoag York when was men in the custody said, there,” he had “I the man lineup,” and don’t think “Q. and this he reiterated on the witness stand. But if of those were Hoag any lineups you were at you Q. him? A. did That’s You he identify right. say not Q. A. I was wasn’t there? don’t think he there. You couldn't him A. at that time? His testi- identify Right.” on the mony same; second trial was in substance the he that, flesh,” said seen the “in the accused he could having positive not be that he was a in the participant holdup; he him”; could not “swear that it was and he not could “swear that it wasn't.” witness, Dottino,
The State’s who was the tavern at time, said of a him picture shown to “the next day”: “Q. “It looks like the man but I'm positive.” not Look at this A. I picture. will look at it sure. like It looks Q. the man but isn't him. it Did this you identify picture in the A. I'm one of those involved being stickup? I’m not sure.” He was positive, police called to York, man in New but “the wasn't there that “lineup” darker, thin, stuck us the “fellow that held us was up”; up thin, about 160 or come weighed pounds, on”; he had the “fellow that us up brown stuck jacket dark, dark.” The witness said he also had been very robbed, but there was no indictment from charging taking his His on the later trial was the same. person. testimony case found the issue present apparently jury It after troublesome. returned verdict of factually guilty earlier, four hours having reported disagreement the court refused accept. *12 at a was loss on the oral county prosecutor argument return an the omission at the to indictment explain outset the the who was witness before Yager,
for of the first and identified the presentation on grand jury later the trial of the three indictments returned. accused on then in And he was unable was not office. prosecutor the verdict the hypothesis excluding an alternative to offer an understandable holdup, nonparticipation accused's difficulty. far threatens
Here, the act-offense dichotomy consequences than the cumulation consecutive possible more serious in- where, it has been suggested, imprisonment terms of aof fact situation” “manipulation single the from justice the the by sentencing judge pardoning either is remediable Kirchheimer’s, Act, and Mr. “The the power. See Offense By Double 58 Yale Law Journal Jeopardy," (1949). and indictment, the fourth the on trial placed accused which, as convicted for the same act or transaction verdict the he had been exonerated necessary consequence, and the earlier indictments. judgment acquittal
As contended Professor Knowlton and associate, his Warren, Mr. accepted who invitation this court prosecute consists of an assault and a appeal, robbery here simultaneous, the assaults were taking; the putting in fear was but a single act or offense alike operating all the time, victims of felonious endeavor at the same a second would contravene the double prosecution jeopardy Constitution, I, clause of State Article paragraph and the ancient of the law that principle common one may not be twice in for the same offense. The put accused had been of the basic act of acquitted robbery, act without which indictment for armed robbery is not maintainable. affirmed that Chitty pleas of acquit autrefois convict on the that “no man shall depend principle
autrefois be than placed peril legal penalties more once upon * * * It all not, cases, the same accusation. neces that should be sary charges two the same precisely for it is if an sufficient of the point degree, acquittal that the one will show defendant could not have been guilty Cr. L. Chitty Cockburn, of the other.” 462. And R. J., Elrington, said in 31 L. J. 14 C.: “It is a C. M. fundamental out of same state of facts a principle is not to allowed.” series of prosecutions is the rationale of our own cases. Where the Such “fact is the same in both prosecutions, prosecuted” though differ “in there is coloring degree,” prior offenses 13 N. J. L. 361 State Cooper, (Sup. 1833). jeopardy. Drake there referred to the mul- protection against Justice a “great for crime as prosecutions principle” tiple bulwarks forming strong liberty,” law “one common citizen, “if would of an *13 subject guilty whose prostration
511 offense, to the unnecessary costs and vexations repeated prosecutions, innocent, and if those, not but only to to danger of erroneous conviction from repeated trials.” He continued: “If in cases, civil the law abhors a mul suits, tiplicity it is yet eases, more watchful in criminal that the crown shall not oppress or the subject, govern ment citizen, prosecutions.” The unnecessary doc trine its has roots in natural to shield freeman justice, from the oppression and persecutions arbitrary govern ment, a limitation upon power absolute confirmed by King John’s Magna Charta of in the provision 29) (c. the essentials of securing individual Tight justice the ancient liberties of the freeman against interference “but by lawful judgment of his or peers, by the law of the land.” Labato, State v. J. 7 N. 137 (1951). inquiry “whether or not the offenses out of the same trans grew Mowser, action were or of a product single act.” State v. & N. L. 474 A. Kalisch, J. (E. J. See State 1919), & Cosgrove, N. J. L. A. State v. (E. 1927); Co., Pennsylvania Railroad 9 N. J. 194 I per (1952). ceive distinction no between these cases and principle at bar. A prosecution case “for aof any part single any crime bars further prosecution based on the whole or Shannon, of that crime.” 'part State v. 136 Me. A.3 2d 899, 120 A. L. R. 1116 Jud. Ct. 1939). There (Sup. is in such circumstances the identity of offenses which into If brings principle operation. guilty indictments, felonious act laid accused in the earlier he could not be guilty offense the later charged indictment.
In mitigation rigor of “same evidence” rule double where second so denying charge is formulated as to be susceptible proof different eviden- facts, the “same transaction” test has been tiary given See, English g., cases. e. recognition Wemyss Q. 378, 381 B. where a (1875), conviction oh. Hopkins, damage person complaint alleging by “negligence e., misbehaviour,” i. a certain by “striking willful horse *14 a second com- was held to bar the complainant, ridden” by in- as a proceeding another statute assault under plaint Blackburn, J., said: matter.” “same identical volving oonviot, but on a does not arise “The defence autrefois person law, a common that where rule at on the well-established punished com- a Court of for an offence convicted and has been is, judioatum, jurisdiction, petent conviction that transit in rem offence, proceedings for the same further be a bar to all shall matter; again punished there otherwise for the same he shall not be might punishments for the same offence.” be two different an the accused there be a acquittal, Whether conviction or cannot be vexed for the same cause. twice Israel, Ct. N. 969 (Sup.
In 269 Ill. E. v. People were stolen different owners where 1915), goods belonging time, held, on it was the same at the same building from that there was a pleading, in criminal question duplicity * n * * Where “a the public. but offense single against same time at the act, completed the offense is one fully kinds of different crime, however many it is but one place, was made between stolen.” A distinction may be property wrongs against public an committed against ofEense of the stolen property. as the owners private separate citizens but affirmed, “such an act is it was public,” “As against many wrongs “there are as crime,” although one offense or there are separate citizens as private against committed owners.” Perrello, E. 748 350 Ill. 182 N. v.
And People at individuals were robbed where several 1932), (Sup. the con gathering, time in a social holdup the same transaction constituted but was that the whole clusion propriety such. prosecuted and could ofEense there; and the distin issue raised court was the joinder “not offenses separate conduct from such criminal guished transaction,” same but “separate and the of one parts fact,” prin and in differentiation in law distinct where res is con judicata to hold good would seem ciple Queens & Brooklyn Corpora Transit People See cerned. tion, 1940), N. 2d 925 484, 28 E. (Ct. App. N. Y. holding that an acquittal on charge maintaining public nuisance ato prior given day is not a bar to prosecution of a charge maintaining thereafter, nuisance it “yet inmay proper case constitute an adjudication of issue fact of law necessarily determined the earlier judg- * * ment Vandercomb,
The “same evidence”' test derived Rex from *15 708, 2 168 Leach 455 Eng. Rep. (1796), Buller, J., designed to allow a new proceeding of against acquitted because variance between allegation proof, does not serve the principle protection basic of action in against arbitrary field prosecutions of for the one act or multiple offense. See ” Act, Kirchheimer's “The the Offense, and Double Jeopardy Note, Minn. L. 522, 24 Rev. supra; 550—558 (1940). this, of Professor has Apropos said in Lugar recent ar Law, ticle, Judicata,” “Criminal Double Jeopardy and Res L. (1954), 39 Iowa Rev. 317 at 347: p. prosecutor required “Not until the is to use in one case all of the
operative facts,
by
arising
him,
known or discoverable
from essen-
tially
accused,
of
one criminal act
or be forever barred from
using any
prosecutions
pro-
of them in future
will the accused be
tected from undue harassment.”
while the
And
rule of former
has
reference to
criminal
of former
prosecutions only,
pleas
conviction
involve
acquittal
also
judicata
of res
or.
principle
termed,
as it is sometimes
“estoppel by judgment,” “estoppel
verdict," or
“collateral
Res
estoppel.”
judicata is a species
Where
estoppel.
second action between the same
is
upon
demand,
different cause or
parties
the judgment
as
prior
action
operates
estoppel, not as to matters
determined,
have been
litigated
but
might
“only
to those matters in issue or
controverted,
points
determination of which the
or verdict was
finding
rendered.”
Sunnen,
Commissioner
Internal Revenue v.
333
591,
U. S.
715,
68
gation
particular
and issues. See United
facts
relitigation
particular
Co.,
73
502,
345
S. Ct.
U. S.
Building
v. International
States
maintenance of
The successful
L.
1182
807, 97
Ed.
(1953).
may
pre
different cause of action
on a
second action
of a particular
conclusive
prior
adjudication
cluded
Machinery Cor
actions. United Shoe
issue involved
both
States,
451,
363,
S. Ct.
258 U. S.
v. United
poration
the second
In
whether
determining
L. Ed. 708 (1922).
is whether
action,
the inquiry
the same cause
action
maintenance,
to their
facts essential
there is the
identity
e.,
both, i.
same evidence would sustain
or whether the
rule. Meirick Wittemann Lewis
“same evidence”
Aircraft
Co.,
1923).
L. 531
& A.
See United States
N. J.
(E.
992, 38
154 U.
14 S. Ct.
Republic,
S.
Haytian
test
collateral
L.
But such is not the
930 (1894).
Ed.
Hancock,
the basic
is the same.
principle
estoppel, although
Co., 62 N. J. L. 289
& A.
(E.
v. Singer Mfg.
Comptroller,
Co.,
R.
S.
Maryland
v. Western
U.
1898); Tait
706,
We *16 end it is in the essential an justice putting as grounded in the interest of the individual litigants to litigation In cases at common law the doctrine as well. civil the public man vexed the maxim that no shall be twice is expressed the same cause. Nemo debet bis vexari pro for one and this a causa. In class case eadem (una ei) matter, whether it in for same be favor former judgment him, action; an bar to good of the defendant or against is the same where ultimate issuable fact and the rule in determined between by judgment proceeding has been 21 163, Ex 18 Wall. L. Ed. 872 Lange, parte parties. said in Drake State v. Cooper, supra, As Justice (1874). also, in criminal the rule cases to secure this is fortiori the citizen from the of unneces- subject oppression sary prosecutions. “same in evidence” test double
The principle qualifies cases, as the included just “necessarily offense” con-
515 secure the same evidence formula to modifies the cept jeopardy. from liberty immunity repeated basic cherished are here with We concerned Cosgrove, supra. v. See State inherent in criminal of finality judgments. quality 37 Ct. 85, 242 S. In v. U. S. Oppenheimer, United States Holmes this 68, adopted L. Ed. 161 Justice (1916), Miles, Q. Hawkins, J., in R. 24 B. Reg. L. declaration 431: 423, Div. adjudicated charge criminal a court has been “Where it, jurisdiction adjudication,
having to and determine hear conviction, acquittal is final as it takes the form of whether adjudicated upon, may pleaded in bar to the matter so be * * any subsequent prosecution In the same offense. *. prevails respect is in unison this the criminal law with that which proceedings.” in civil continued: He safeguards person, cannot be that “It so often and rightfully reverence,
so mentioned with solemn are less than those * * protect liability finality from a debt. *. The of a adjudication previous by it, the matters determined is the Evans, ground 25, of decision in Com. v. Mass. the criminal agreeing, says.” and civil law as Mr. Justice Hawkins And exceptions, some though, may prosecuted be in the federal for the jurisdiction commission of a substan- it, tive offense and to commit “res conspiracy judicata may be a defense a second That doctrine prosecution. applies * * * as well to criminal as civil proceedings, those matters in issue to conclude which the operates verdict determined the offenses different.” though Sealfon States, 332 U. United S. S. L. Ed. 180 There, the court considered the facts adduced at (1948). trial, and the each instructions on the given jury first trial, whether determining jury’s verdict *17 trial resolved in favor conspiracy of the petitioner the offense; essential to conviction of the substantive facts was that the earlier the conclusion verdict precluded a later the substantive offense. conviction of Said Justice Douglas: 516 prove attempt agreement which “It was second to the at each necessarily prosecution’s was
trial was crucial to case and which the adjudicated may prosecution not in the That the former trial. do.” In a later that doctrine of ease it was said the general “is as to the of criminal decisions estoppel applicable * * * as In jurisdiction. courts civil those of the case of criminal conviction on a ver jury based the which were verdict dict of issues essential guilty, the by must be as been determined regarded having what was decided the criminal is judgment judgment”; an record, to be had “examination of the the including submitted, under the evidence the instructions pleadings, the at its jury verdict, any opinions which arrived of courts”; the and the was that a criminal prior holding maj’ estoppel government conviction work favor Motors in a civil Emich subsequent proceeding. Corp. 558, 408, Motors 340 71 Ct. 95 General U. S. S. Corp., Note, 522, 24 L. Ed. 534 Minn. L. Rev. (1951). See (3 v. De F. 2d 466 See also United 138 Angelo, States v. Commonwealth Va. 1943); Virginia, Cir. Adkins 590, 349, L. R. 1940). N. E. 2d 131 A. Ct. (Sup. State, 147 A. Harris v. 193 Ga. S. E. 2d L. R. There, is the de 1941), directly 980 (Sup. point. murder, fendant, was later convicted of the acquitted killing out arose. that robbery Holding law, crimes were the same offense under two not Georgia Court reversed the conviction ill- Supreme Georgia at since the sole issue the earlier trial was the founded This thus: defendant. court reasoned identity slightest former murder not “In the trial there was part justification pretense the defendant. whole single question in that case centered whether contention robbery participated with another murder and the defendant did, necessarily guilty was If he murder. of the deceased. he necessarily jury par- By acquitting him, found that he did ticipate This was sole issue that tried in the transaction. sought, determination, after now such a solemn and determined. It necessary again issue, and effect to undo the to test same by adjudicating judgment did in fact the defendant former murder, jury participate has from which *18 already undisputably appears absolved him. Since it de- guilty present charge fendant could not be without also being guilty acquitted, of the crime which he has been tried and put purpose again he cannot now in be adjudicating already the issue which has been determined in his favor.”
Tlie verdict and on the earlier in- judgment acquittal dictments of necessity presupposes nonparticipation accused the armed verdict of Yager. could acquittal otherwise; not have been reached the accused’s of all exculpation complicity holdup indubitably part it so is conclusive of the thing adjudged, ultimate issuable fact of so, Unless this then the guilt. citizen such subject circumstance is to successive prosecu- tions until a jury is found. convicting
I would reverse the and direct a judgment dismissal of the indictment. Justice
Mr. Mr. join Justice Brennan Jacobs this opinion. For Justice Vanderbilt, and Justices affirmance—Chief Burling—4.
Oliphant, Waoheneeld
For reversal—Justices Heher, Jacobs Brennan—3. PLAINTIFF, CO., INC., GRAYBAR ELECTRIC v. MANUFAC CO., CORPORATION, TURERS A CASUALTY DEFEND PLAINTIFF-APPELLANT, ANT AND THIRD-PARTY PLAINFIELD, BOARD OF EDUCATION OF THE CITY OF CORPORATION, A MUNICIPAL THIRD-PARTY DEFENDA NT-RESPONDENT. Argued April 23, May 14,