Thе question here is the sufficiency of the plea of double jeopardy interposed by defendant Labato to an indictment returned in the Camden County Court on February 16, 1950, charging that on a given day he “unlawfully and knowingly did have in his possession certain paper, slips, documents and memorandum pertaining to the business of lottery policy, so-called and otherwise called under the name and style of numbers,” in contravention of B. S. 2:147-3. The plea proceeds from the conviction of the accused in the Police Court of the City of Camden on February 2, 1950, on a complaint alleging that he “did unlawfully have in his possession” the self-same “number slips,” in violation of B. 8. 2:202-16, providing that the pоssessor of lottery slips or memoranda pertaining “to the business of a number game,” as therein defined, shall be adjudged a “disorderly person.” To this complaint, the accused “entered a plea of non vuli” and “received a sentence of $200 or 30 days in jail,” so runs the agreed statement in lieu of the record.
The agreed statement embodies a concession by the State that “the proof necessary to convict on the indictment would necessarily also convict on the disorderly charge,” and “the proof necessary to convict on the disorderly charge would support a conviction on the indictment,” and an acknowledgment by the acсused that fihis prosecution as a disorderly person” in the police court “was over the objection of the County Prosecutor, who had demanded” that the accused “be prosecuted under the Crimes Act.” The plea of autrefois convict was sustained by the county court. The State’s appeal from the consequent judgment was certified here for decision on our own motion.
It is now contended by the State that the accused’s conviction as a disorderly person is not a conviction of crime and the principle of former jeopardy has no application, particularly because the police court did not have jurisdiction of the criminal offense laid in the indictment and the county court did not have jurisdiction of the offense made punishable by
I.
The Constitution of 1947 provides that no person shall, after acquittal, be tried for the same offense. Article I, paragraph 11. This provision, in itself, goes no further than to forbid the retrial of a person who has been acquitted of an offense. Smith and Bennett v. State, 41 N. J. L. 598 (E. & A. 1879). But the enumeration of “rights and privileges” in this article of the Constitution “shall not be construed to impair or deny others retained by the people.” Article I, paragraph 31. And among the “natural and unalienable rights” secured by the first paragraph of Article I “are those of enjoying and defending life and liberty.” The Constitution of 1844 had the same provisions. Article I, paragraphs 1,10, 31.
It is an ancient principle of the common law that one may not be twice put in jeopardy for the same offense. This is one of the limitations upon arbitrary power confirmed by King John’s Magna Charta of 1315, in the provision (c. 39) ensuring the essentials of individual right and justice and the ancient liberties of the freeman against interference Cibut by lawful judgment of his peers, or by the law of the land.” Immunity from repeated jeopardy was one of the cherished basic liberties оf the early common law comprehended in this guaranty of the Great Charter.
State v. Di Giosia,
3
N. J.
413 (1950). The constitutional and common-law protection is not only against the peril of a second punishment, but also against a second prosecution and trial for the same offense.
Levin v. United States,
5
Fed. (2d)
598 (1935),
certiorari
denied, 369
U. S.
563, 46
S. Ct.
31, 70
L. Ed.
413 (1935);
Donato v. United States,
48
Fed. (2d)
143 (1931). Chitty said that the plea of
autrefois acquit
rests on the principle that “no man shall be placed in pеril of legal
There is general agreement as to the essential quality of the principle itself, but endless conflict of decision on the question of identity of offenses. 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 thе first.
State v. Di Giosia, supra.
The rule deducible from the cases at common law is that, “unless the first indictment were such as the prisoner might
Where “the fact prosecuted” is the same in both prosecutions, though the offenses differ “in coloring and degree,” there is priоr jeopardy.
State v. Cooper, supra;
4
Blackstone’s Com.
336. The principle of the
Cooper
case was reiterated by the old Court of Errors and Appeals in
State v. Rosa,
72
N. J. L.
462
(E. & A.
1905), and again in
State v. Motoser,
92
N. J. L.
474
(E. A.
1919). In the latter case a judgment on a plea of guilty to an indictment for robbery was held a bar to the prosecution of an indictment for murder done in the perpetration of the robbery. “The same act may not be twice punished by the same sovеreignty, merely because it violates two laws.”
Copperthwaite v. United States,
37
Fed. (2d)
846 (1930). It is not necessarily a second jeopardy for the same act that brings the maxim into operation, but rather a second jeopardy for the same offense.
State v. O’Brien,
106
Vt.
97, 170
A.
98 (1934). A prosecution “for any part of a single crime bars any further prosecution based
An acquittal on a charge of murder is a bar to a subsequent indictment for manslaughter. 2 Hale 246. An acquittal upon an indictment for manslaughter is a bar to an indictment for murder on the same facts. Holcrofl’s Case, 2 Hale 246; 3 Co. Rep. 46 b. As a general rule, whether a person accused of a minor offense is acquitted or convicted, he cannot be charged again on the same facts in a more aggravated form. R. v. Elrington, 1 B. & S. 688; 31 L. J. M. C. 14, Cockburn, C. J.; R. v. Miles, 24 Q. B. D. 423; 59 L. J. M. C. 56. But this rule does not apply when the subsequent charge is that of murder or manslaughter. R. v. Morris, L. R. 1 C. C. R. 90, 36 L. J. M. C. 84; 10 Cox 480; R. v. Salvi, 10 Cox 481 n. And it is immaterial whether thе first acquittal or conviction were in a summary proceeding or on indictment. Wemyss v. Hopkins, L. R. 10 Q. B. 378, 44 L. J. M. C. 101.
Under the double jeopardy clause of the Fifth Amendment to the Constitution, the Congress may lajr down both a criminal and a civil sanction in respect of the same act or omission,
II.
Here, it was the possession of the contraband memoranda that constituted the subject of both prosecutions; and thus there was the requisite identity of offenses, even though criminal intent or “guilty knowledge” is an element of the one statutory class but not of the other and thе permissible punishment is greater in the one case than in the other. It was suggested on the oral argument that unknowing possession is punishable under the Disorderly Persons Act, while knowing possession is the offense denounced by the Crimes Act, and so they are separate and distinct offenses and the judg
“Possession” is an ambiguous term derived from the Roman law. It has variant connotations; but on well-settled principle the word is to be given a strict construction in statutes defining criminal and penal offenses. It signifies an intentional control and dominion.
Bergedorff v. United
States, 37
Fed. (2d)
248 (1929).
Animus possidendi
is of. the essence of possession. Such was its primary meaning under Roman law. “Possession is the occupation of anything with the intention of exercising the rights of ownership in respect to it.” Huntеr,
Rom. Law
209. Under the cited statutes, “possession” imports “corporeal possession in fact. * * * The elements of this possession are: First, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and, second, the effective realization of this attitude. Effective realization involves the rеlation of the claimant to other persons, amounting to a security for their noninterference, and the relation of the claimant to the material thing itself, amounting to a security for exclusive use at will. All the authorities agree that an intent to exclude others must coexist with the external facts, and must be fulfilled in the external physicаl facts, in order to constitute possession. It is this requirement which prevents'the man in whose building, or automobile, or traveling bag, or pocket, liquor is found, which
Knowing possession is not to be confused with criminal intent or guilty knowledge. At common law, scienter is an indispensable element. The constituents of a criminal offense at common law are an evil intention and an unlawful act.
Actus non facet reum, nisi mens sit rea. State v. Woodward,
99
N. J. L.
49
(Sup. Ct.
1923). But it is within the competency of the lawgiver, in the common interest, to declare an act criminal irrespective of the knowledge or motive of the doer of the act. The Legislature may make the doing оf the prohibited act criminal or penal, regardless of a corrupt or criminal purpose or even knowledge of the illegal character of the act; and in such case only the doing of the proscribed act need be shown.
Halsted v. State,
41
N. J. L.
552
(E. & A.
1879);
State v. Kuehnle,
85
N. J. L.
220
(E. & A.
1913);
People v. Clark,
242
N. Y.
313, 151
N. E.
631 (1926);
United States v. Balint,
258
U. S.
250, 42
S. Ct.
401, 66
L. Ed.
604 (1922). See, also,
State v. Cutter,
36
N. J. L.
125
(Sup. Ct.
1873). The criminal mind is not
A corrupt or evil intent is not an element of the possession denounced by the Disorderly Persons Act; but there must be an intention to possess the forbidden papers. This statute and the Crimes Act deal merely with different degrees of the same offense. The unlawful possession cannot be split into two separate and distinct offenses, cumulatively punishable. The provision of the Disorderly Persons Act was a police measure designed to afford a speedy and effective remedy where the offense was less aggravating in circumstance. The two prosecutions concern the one supposed act of possession. The lesser offense is necessarily involved in the greater. Obviously, an acquittаl of the accused of the lower offense of possession would constitute an acquittal of the possession constituting a high misdemeanor under the Crimes Act, for the criminal intent made an element of the latter is not an ingredient of the former. If not guilty of the lesser offense, he could not be guilty of the greater. If he were innocеnt of the modified offense, “he could not be guilty of the same fact, with the addition of malice and design.” State v. Cooper, supra; Chitty’s Cr. L. 455. By the same token, g conviction of the lesser offense is a bar to a prosecution of the greater. The lesser is a constituent of the greater. Apart ■from the principle of double jeopardy, a holding contra would do violеnce to the legislative purpose. It was not the intention to render the violator subject to double imprisonment for .the one act of possession. Violations of the cited provision of ■of the Disorderly Persons Act are punishable by imprisonment for a term not exceeding one year, or by a fine not exceeding $175. R. S. 2:205-1.
“Disordеrly conduct” is not an offense known to the common law. The category comprises minor offenses de
The police court was not deprived of jurisdiction by the course taken by the county prosecutor. The grant of jurisdiction is not thus conditioned. Neither R. S. 2:182-4, placing the рrosecution of the criminal business of the State in the hands of the county prosecutor, nor Rule 8:3-3(d) of this court is directed to that end. Both have reference to indictable offenses, and not to prosecutions under the Disorderly Persons Act. This dual authority in matters of law enforcement undoubtedly gives rise to policy and administrative difficulties; but the remedy lies with the Legislature.
The judgment is affirmed.
For affirmance—Justices Heher, Wachefeeld, Burlifg and Aokersof—4.
For reversal—Chief Justice Yafderbilt, and Justices Case and Oliphaft-—3.