State v. LabatoState v. Labato
The matter of State v. Victor Labato comes before the court on a plea of autrefois convict, entered on behalf of the defendant to an indictment from the grand jury of this county charging him with unlawfully and knowingly having 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, “numbers.” In addition to the entry' of the common law plea the defendant has also moved to dismiss the indictment, which motion was accompanied by supporting affidavits, the tenor of which was that he had previously been tried in the Camden City Police Court for a violation of the Disorderly Persons Act upon complaint filed in that court. The facts and circumstances alleged in that complaint were identical with those which are the basis for the indictment under consideration.
The State, acknowledging that the facts upon which the indictment is based are the same as those upon which the disorderly conduct charge was made, made no rejoinder to the plea of autrefois convict but submitted an affidavit of the prosecutor of the pleas in which it was stated that he, the prosecutor, upon receiving information that the defendant was to be tried summarily in the Camden City Police Court, made a personal request of the acting judge that the de
This provision of the Constitution, Article I, paragraph 11, declares in its pertinent part that “no person shall,, after acquittal, be tried for the same offense,” and is a verbatim repetition of Article I, paragraph 10, of the Constitution of 1844. This identity of language is no mere coincidence, the Legislature having expressly provided, in its submission to the electorate of the call of a constitutional convention, that no charter could be adopted without including the Bill of Bights, which provides the guarantee of those natural and unalienable rights belonging to free and independent men. Therefore, while no interpretation has been put upon this clause since the effective date of the-Constitution of 1947, what has been judicially stated by our appellate courts in interpretation of the clause as it stood in. the Constitution of 1844 remains, if not as controlling authority, at least as a reliable guide for courts of first instance. Thus resort may profitably be made to the case of State v. Cooper, 13 N. J. L. 361 (Sup. Ct. 1833), a century-old landmark, followed without deviation in this State and cited and acknowledged in virtually every jurisdiction for its lucid exposition of the principle of double jeopardy. While the-constitutional language then took the form, of the Federal Constitution, the substance and meaning has been in no-sense altered or weakened, as witness this observation by the opinion writer, Justice Drake: “(though) the Constitution of New Jersey adopts and declares this important principle * * * * Our courts of justice would have recognized it, and acted upon it, as one of the most valuable principles of the common law, without any constitutional provision. But
At this point emphasis must be put upon the fact that the authority upon which the Camden City Police Court .■acted and upon which the present indictment rests emanates from the same source, the Legislature of the State, thus ren■dering inapplicable that line of cases of which United States v. Lanza, 260 U. S. 377 (1922) and Howe v. Treasurer of Plainfield, 37 N. J. L. 145 (Sup. Ct. 1874) are examples in the federal and state jurisdictions respectively, because in each of the instances there considered the subsequent prosecution and punishment was at the hands of an authority or sovereignty separate and distinct in its field from that which had acted antecedently. In the former case it was held that conviction in a state court for violation of a state prohibition law did not justif3r a defense of double jeopardy in a proceeding by the United States against the same defendant for violation of the federal prohibition law. In the latter ease it was held that a summary proceeding for violation of an ordinance of the city of Plainfield forbidding the sale of liquor without a license was not barred because it was also punishable as a misdemeanor. The original support for this
Tn the Lanzo case, after citing and reaffirming the principle as laid down in Moore v. People of the State of Illinois, Chief Justice Taft discourses upon a practical consideration that demanded recognition because of the ever present necessity for preventing unseemly conflicts between federal and state sovereignties in the following terms: “If Congress sees fit to bar prosecution by the Federal courts for any net when punishment for violation of State prohibition has been imposed it can of course do so by proper legislative provision bur it lias not done so. U a state were to punish the manufacture. transportation and sale of intoxicating liquor by small or nominal fines, the race of offenders to the courts of that state to jilead guilty and secure immunity from Federal prosecution for such acts would not make for respect for the Federal statute or for its defer rent effect. But it is not for us to discuss the wisdom of legislation; * *
Advertence to these cases is made to illustrate that no consideration of mere policy was invoked to justify the seeming harshness of double punishment for a single act or that the principle of double jeopardy was more lightly regarded in offenses that are generally classified as mála prohibila but that it yields only before an equally weighty and supervening principle. So while the argument advanced by the prosecutor that such summary disposition as is contemplated by the Disorderly Persons Act does not admit of the use of the more effective handling of such matters available under the Crimes Act, such as more severe punishment, supervision on parole or probation, makes out a more impressive case on policy, it does not assume the dignity of a principle nor can it be made
At the instance of the State a review was sought in the Court of Errors and Appeals and the holding of the Supreme Court was reversed. The court of last resort, referring to the Crimes Act, said: “Thus the sale and purchase of lottery tickets, as distinguished from the lottery itself, is made the subject of a specific inhibition, while the bare possession of such tickets is not. This is conclusive of an intention and purpose not to incorporate in the fundamental law the statutory provision relating to possession. It makes evident a design not 1o oust the Legislature of authority to deal with the mere possession of slips, papers, and documents pertaining to that form of gaming. * * * And it is to be borne in mind that neither purchase of the ticket, nor the possessor’s intent to sell it, or to participate in a lottery, is an ingredient of the possession made punishable by the statute under con
The practical result therefore is that there are two methods by which offenses of this nature may be prosecuted, the first essentially preventive in character, the second essentially punitive, and the election by the State to prosecute under the one excludes a subsequent prosecution under the other. To hold otherwise would be to ascribe to the Legislature a purpose to impose a double penalty for a single offense contrary to the constitutional guarantee which operates no less to prevent invasion by the legislative process than it does to require effective enforcement by the judicial.
The provision of the Crimes Act is contained in R. S. 2:147-3, par. b and reads that: “Any person * * * who shall knowingly have in his possession any paper, document, slip or memorandum that shall pertain in any way to the business of lottery or lottery policy, so-called * * * shall be [deemed] guilty of a high misdemeanor.” It will be noted that the element of knowledge is contained in this offense as distinguished from the Disorderly Persons Act under which possession alone is denounced and thus there is required, in order to justify the plea, a showing that the same facts as would support the finding that the defendant-was guilty of mere possession-would be sufficient also to support a finding that he was guilty of possession with knowledge. On this point the case of State v. Collins, 43 A. 896 (E. & A. 1899) is dispositive. There the Court of Errors and Appeals was called upon to determine that precise point in interpreting the source law of the statute under which the defendant is here indicted. This statute, contained in “A supplement to an * * * Act for the Punishment
In this matter, all that would be required of the State to establish a prima facie case under the Crimes Act would be to show the identical act of the defendant that was the basis for the complaint, conviction and punishment in the police court. To deny the validity of the plea here made would be to sanction the imposition of double punishment upon a defendant who has already been brought before and punished by a court of competent jurisdiction for an offense prescribed by the same authority as that under which this indictment was found, and here, as in the case of State v. Cooper, supra) there is revealed “a ease where the State has thought proper to prosecute the offense in its mildest form, and it is better that the
The indictment is dismissed.
The decision here controls in the case of State v. Herbert Johnson.