# State v. Hoag > Supreme Court of New Jersey · May 14, 1956 · 21 N.J. 496 URL: https://www.frixlaw.com/law-library/cases/9755144 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. William Hoag, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** May 14, 1956 - **Citations:** 21 N.J. 496; 122 A.2d 628; 1956 N.J. LEXIS 257 - **Precedential status:** Published - **Opinion:** Dissent by Heher - **Judges:** Wachenfeld, Heher - **Cited by:** 42 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755144 ## Opinion text Heher, J. (dissenting). The determinative question on the trial of the earlier indictments accusing the defendant Hoag of the armed robbery of Cascio, Capezzuto and Galiardo, as separate and distinct offenses, was the identity of the accused as one of the perpetrators of the robbery of the *507 named individuals and Yager, too, all as part of the same transaction; and it was resolved by the acquittal of the accused, a finding conclusive of the basic issue, on the plainest principles of justice precluding its relitigation on the trial of the fourth indictment, returned immediately after the acquittal, laying to Hoag the armed robbery of Yager at the same time and place. My brethren say: “Nor was the defendant’s plea of alibi necessarily established by the first jury’s general verdict of not guilty. There is nothing to show that the jury did not acquit the defendant on some other ground or because of a general insufficiency in the State’s proof.” But there can be no doubt, I submit, of the issue submitted to the jury and the fact upon which the exculpatory verdict turned, i. e., the accused’s participation in a holdup that was a conceded fact. The appendix submitted to the Appellate Division was found to be deficient; and the “factual- structure upon which the defendant’s points of appeal” were considered took the “form of a statement of facts” to which counsel for the State and the accused subscribed and the trial judge gave his approval. See R. R. 1:6-2; 2:6. State v. Hoag, 35 N. J. Super. 555 (App. Div. 1955). The certification thus made was the return of the three indictments severally charging the armed robbery of the named individuals, as distinct offenses, the consolidation of the indictments for trial, and the acquittal on all three indictments following a jury trial held May 26 and 27, 1952; also, that the judgment under review is founded on an indictment returned July 17, 1952, accusing Hoag of the armed robbery of Yager “on the same occasion, as set forth in the indictments of June 26, 1951”; that Yager “testified as to the details of the holdup at the trial” of the three earlier indictments; and that prior to and in the course of the trial of the later indictment now before us, the accused “invoked the defense of former or double jeopardy on the grounds that there was but one incident and one holdup,” and “all of the victims were present at the same time and place,” and “the *508 testimony of all of the victims, including” Yager, “was given at the first trial, when defendant was acquitted.” On our order a transcript of the evidence adduced at the first trial was provided; and this was followed by a stipulated addendum to the Statement in Lieu of Record, declaring that at the first trial “there was no dispute as to the fact of the robbery or that the said victims, Cascio, Capezzuto, and Galiardo, as named in the separate indictments, were robbed”; that “[djefendant testified as to the alibi and the three victims named testified on behalf of the State as to the defendant’s identity,” and “[tjhese same victims testified on behalf of the defendant at the second trial.” It is said in the majority opinion that “[wjithin a matter of weeks after the robbery, the victims were shown photographs of criminals known to have engaged in [similar] activities,” and “Two of the victims identified the photograph of one man, the present defendant, as one who had engaged in the robbery.” But this was not so as to either Cascio or Capezzuto. They each denied in clear and positive terms, at the first trial and the second, that the accused was one of the perpetrators of the holdup; and there was no plea of surprise at the earlier trial or an offer to neutralize their testimony by proof of such photographic identification, nor was this made the subject of interrogation on the second trial when they testified for the accused. The State made no such contention on either trial. Galiardo, the operator of the tavern where the holdup occurred, had identified the accused by means of a photograph shown to Mm in New York. And he testified at the first trial, as the State’s witness, that “This Mr. Hoag looks like the man that was in my place,” “I’m not positive, but I think so”; that he viewed two police “lineups” in New York when Hoag was in custody there, “12 men in the lineup,” and he had said, “I don’t think the man is there,” and this he reiterated on the witness stand. “Q. But if Hoag were in any of those lineups that you were at you did not identify him? A. That’s right. Q. You say he wasn’t there? A. I don’t think he was there. Q. You *509 couldn't identify him at that time? A. Right.” His testimony on the second trial was in substance the same; he said that, having seen the accused “in the flesh,” he could not be positive that he was a participant in the holdup; he could not “swear that it was him”; and he could not “swear that it wasn't.” The State’s witness, Dottino, who was in the tavern at the time, said of a picture shown to him “the next day”: “It looks like the man but I'm not positive.” “Q. Look at this picture. A. I will look at it sure. It looks like the man but it isn't him. Q. Did you identify this picture as being one of those involved in the stickup? A. I'm not positive, I’m not sure.” He was called to a police “lineup” in New York, but “the man wasn't there that stuck us up”; the “fellow that held us up was darker, thin, weighed about 160 or 165 pounds, thin, come in with a brown jacket he had on”; the “fellow that stuck us up was dark, very dark.” The witness said he also had been robbed, but there was no indictment charging a taking from his person. His testimony on the later trial was the same. The jury in the present case apparently found the issue factually troublesome. It returned a verdict of guilty after having reported a disagreement four hours earlier, which the court refused to accept. The county prosecutor was at a loss on the oral argument to explain the omission at the outset to return an indictment for the robbery of Yager, who was a witness before the grand jury on the first presentation and identified the accused on the trial of the three indictments later returned. The prosecutor was not then in office. And he was unable to offer an alternative hypothesis for the verdict excluding the accused's nonparticipation in the holdup, an understandable difficulty. Here, the act-offense dichotomy threatens consequences far more serious than the possible cumulation of consecutive terms of imprisonment where, it has been suggested, injustice from the “manipulation of a single fact situation” is remediable either by the sentencing judge or the pardoning *510 power. See Mr. Kirchheimer’s, “The Act, the Offense and Double Jeopardy," 58 Yale Law Journal 513 (1949). By the fourth indictment, the accused was placed on trial and convicted for the same act or transaction of which, as a necessary consequence, he had been exonerated by the verdict and judgment of acquittal on the earlier indictments. As contended by Professor Knowlton and his associate, Mr. Warren, who accepted the invitation of this court to prosecute the appeal, robbery consists of an assault and a taking; and here the assaults were simultaneous, the putting in fear was but a single act or offense operating alike upon all the victims of the felonious endeavor at the same time, and a second prosecution would contravene the double jeopardy clause of the State Constitution, Article I, paragraph 11, and the ancient principle of the common law that one may not be twice put in jeopardy for the same offense. The accused had been acquitted of the basic act of the robbery, the act without which the indictment for armed robbery is not maintainable. Chitty affirmed that the pleas of autrefois acquit and autrefois convict depend on the principle that “no man shall be placed in peril of legal penalties more than once upon the same accusation. * * * It is not, in all cases, necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other.” 1 Chitty Cr. L. 452, 462. And Cockburn, C. J., said in R. v. Elrington, 31 L. J. 14 M. C.: “It is a fundamental principle that out of the same state of facts a series of prosecutions is not to be allowed.” Such is the rationale of our own cases. Where the “fact prosecuted” is the same in both prosecutions, though the offenses differ “in coloring and degree,” there is prior jeopardy. State v. Cooper, 13 N. J. L. 361 (Sup. Ct. 1833). Justice Drake there referred to the protection against multiple prosecutions for crime as a “great principle” of the common law forming “one of the strong bulwarks of liberty,” whose prostration would subject the citizen, “if guilty of an *511 offense, to the unnecessary costs and vexations of repeated prosecutions, and if innocent, not only to those, but to the danger of an erroneous conviction from repeated trials.” He continued: “If in civil cases, the law abhors a multiplicity of suits, it is yet more watchful in criminal eases, that the crown shall not oppress the subject, or the government the citizen, by unnecessary prosecutions.” The doctrine has its roots in natural justice, to shield the freeman from the oppression and persecutions of arbitrary government, a limitation upon absolute power confirmed by King John’s Magna Charta of 1215, in the provision (c. 29) securing the essentials of individual Tight and justice and the ancient liberties of the freeman against interference “but by lawful judgment of his peers, or by the law of the land.” State v. Labato, 7 N. J. 137 (1951). The inquiry is “whether or not the offenses grew out of the same transaction or were the product of a single act.” State v. Mowser, 92 N. J. L. 474 (E. & A. 1919), Kalisch, J. See State v. Cosgrove, 103 N. J. L. 412 (E. & A. 1927); State v. Pennsylvania Railroad Co., 9 N. J. 194 (1952). I perceive no distinction in principle between these cases and the case at bar. A prosecution “for any part of a single crime bars any further prosecution based on the whole or 'part of that crime.” State v. Shannon, 136 Me. 127 , 3 A. 2d 899 , 120 A. L. R. 1116 (Sup. Jud. Ct. 1939). There is in such circumstances the identity of offenses which brings the principle into operation. If not guilty of the felonious act laid to the accused in the earlier indictments, he could not be guilty of the offense charged in the later indictment. In mitigation of the rigor of the “same evidence” rule denying double jeopardy where the second charge is so formulated as to be susceptible of proof by different evidentiary facts, the “same transaction” test has been given recognition in the English cases. See, e. g., Wemyss v. Hopkins, 10 Q. B. 378, 381 (1875), where a conviction oh. a complaint alleging damage to a person by “negligence or willful misbehaviour,” i. e., by “striking a certain horse *512 ridden” by the complainant, was held to bar a second complaint for assault under another statute as a proceeding involving the “same identical matter.” Blackburn, J., said: “The defence does not arise on a plea of autrefois oonviot, but on the well-established rule at common law, that where a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judioatum, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence.” Whether there be a conviction or an acquittal, the accused cannot be twice vexed for the same cause. In People v. Israel, 269 Ill. 284 , 109 N. E. 969 (Sup. Ct. 1915), where goods belonging to different owners were stolen from the same building at the same time, it was held, on a question of duplicity in criminal pleading, that there was but “a single offense against the public. * *■ * Where the offense is one act, fully completed at the same time and place, it is but one crime, however many different kinds of property may be stolen.” A distinction was made between an ofEense committed against the public and wrongs against private citizens as the separate owners of the stolen property. “As against the public,” it was affirmed, “such an act is but one offense or crime,” although “there are as many wrongs committed against private citizens as there are separate owners.” And in People v. Perrello, 350 Ill. 231 , 182 N. E. 748 (Sup. Ct. 1932), where several individuals were robbed at the same time in a holdup of a social gathering, the conclusion was that the whole transaction constituted but one ofEense and could be prosecuted as such. The propriety of joinder was the issue raised there; and the court distinguished such criminal conduct from separate offenses “not parts of one and the same transaction,” but “separate and distinct in law and in fact,” a differentiation that on principle would seem to hold good where res judicata is concerned. See People v. Brooklyn & Queens Transit Corpora tion, 283 N. Y. 484 , 28 N. E. 2d 925 (Ct. App. 1940), *513 holding that an acquittal on a charge of maintaining a public nuisance prior to a given day is not a bar to the prosecution of a charge of maintaining a nuisance thereafter, “yet it may in proper case constitute an adjudication of an issue of fact or of law necessarily determined by the earlier judgment * * The “same evidence”' test derived from Rex v. Vandercomb, 2 Leach 708, 168 Eng. Rep. 455 (1796), Buller, J., designed to allow a new proceeding against one acquitted because of variance between allegation and proof, does not serve the basic principle of protection against arbitrary action in the field of multiple prosecutions for the one act or offense. See Kirchheimer's “The Act, the Offense, and Double Jeopardy ” supra; Note, 24 Minn. L. Rev. 522 , 550—558 (1940). Apropos of this, Professor Lugar has said in a recent article, “Criminal Law, Double Jeopardy and Res Judicata,” 39 Iowa L. Rev. 317 (1954), at p. 347: “Not until the prosecutor is required to use in one case all of the operative facts, known or discoverable by him, arising from essentially one criminal act of the accused, or be forever barred from using any of them in future prosecutions will the accused be protected from undue harassment.” And while the rule of former jeopardy has reference to criminal prosecutions only, the pleas of former conviction and acquittal involve also the principle of res judicata or. as it is sometimes termed, “estoppel by judgment,” “estoppel by verdict," or “collateral estoppel.” Res judicata is a species of estoppel. Where the second action between the same parties is upon a different cause or demand, the judgment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but “only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” Commissioner of Internal Revenue v. Sunnen, 333 U. S. 591 , 68 S. Ct. 715 , 92 L. Ed. 898 (1948); Partmar Corporation v. Paramount Theatres Corporation, 349 U. S. 89 , 74 S. Ct. 414 . 98 L. Ed. 532 (1954). The one precludes the reliti *514 gation of particular causes of action; the other precludes the relitigation of particular facts and issues. See United States v. International Building Co., 345 U. S. 502, 73 S. Ct. 807, 97 L. Ed. 1182 (1953). The successful maintenance of a second action on a different cause of action may be precluded by a prior conclusive adjudication of a particular issue involved in both actions. United Shoe Machinery Corporation v. United States, 258 U. S. 451 , 42 S. Ct. 363 , 66 L. Ed. 708 (1922). In determining whether the second action is for the same cause of action, the inquiry is whether there is the identity of facts essential to their maintenance, or whether the same evidence would sustain both, i. e., the “same evidence” rule. Meirick v. Wittemann Lewis Aircraft Co., 98 N. J. L. 531 (E. & A. 1923). See United States v. The Haytian Republic, 154 U. S. 118 , 14 S. Ct. 992 , 38 L. Ed. 930 (1894). But such is not the test of collateral estoppel, although the basic principle is the same. Hancock, Comptroller, v. Singer Mfg. Co., 62 N. J. L. 289 (E. & A. 1898); Tait v. Western Maryland R. Co., 289 U. S. 620 , 53 S. Ct. 706 , 77 L. Ed. 1405 (1933). We are dealing with a principle of universal jurisprudence, grounded as it is in the essential justice of putting an end to litigation in the interest of the individual litigants and the public as well. In civil cases at common law the doctrine is expressed by the maxim that no man shall be twice vexed for one and the same cause. Nemo debet bis vexari pro (una ei) eadem causa. In this class of case the plea of a former judgment for the same matter, whether it be in favor of the defendant or against him, is a good bar to an action; and the rule is the same where the ultimate issuable fact has been determined by judgment in a proceeding between the parties. Ex parte Lange, 18 Wall. 163 , 21 L. Ed. 872 (1874). As Justice Drake said in State v. Cooper, supra, this is a fortiori the rule in criminal cases also, to secure the subject and the citizen from the oppression of unnecessary prosecutions. The principle qualifies the “same evidence” test in double jeopardy cases, just as the “necessarily included offense” con *515 cept modifies the same evidence formula to secure the cherished basic liberty of immunity from repeated jeopardy. See State v. Cosgrove, supra. We are concerned here with the quality of finality inherent in criminal judgments. In United States v. Oppenheimer, 242 U. S. 85 , 37 S. Ct. 68 , 61 L. Ed. 161 (1916), Justice Holmes adopted this declaration of Hawkins, J., in Reg. v. Miles, L. R. 24 Q. B. Div. 423, 431: “Where a criminal charge has been adjudicated upon by a court having jurisdiction to hear and determine it, the adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offense. * * *. In this respect the criminal law is in unison with that which prevails in civil proceedings.” He continued: “It cannot be that the safeguards of the person, so often and so rightfully mentioned with solemn reverence, are less than those that protect from a liability in debt. * * *. The finality of a previous adjudication as to the matters determined by it, is the ground of decision in Com. v. Evans, 101 Mass. 25 , the criminal and civil law agreeing, as Mr. Justice Hawkins says.” And though, with some exceptions, one may be prosecuted in the federal jurisdiction for the commission of a substantive offense and a conspiracy to commit it, “res judicata may be a defense in a second prosecution. That doctrine applies to criminal as well as civil proceedings, * * * and operates to conclude those matters in issue which the verdict determined though the offenses be different.” Sealfon v. United States, 332 U. S. 575 , 68 S. Ct. 237 , 92 L. Ed. 180 (1948). There, the court considered the facts adduced at each trial, and the instructions given the jury on the first trial, in determining whether the jury’s verdict in the conspiracy trial resolved in favor of the petitioner the facts essential to conviction of the substantive offense; and the conclusion was that the earlier verdict precluded a later conviction of the substantive offense. Said Justice Douglas: *516 “It was a second attempt to prove the agreement which at each trial was crucial to the prosecution’s case and which was necessarily adjudicated in the former trial. That the prosecution may not do.” In a later ease it was said that the general doctrine of estoppel “is as applicable to the decisions of criminal courts as to those of civil jurisdiction. * * * In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment”; what was decided by the criminal judgment is to be had by an “examination of the record, including the pleadings, the evidence submitted, the instructions under which the jury arrived at its verdict, and any opinions of the courts”; and the holding was that a prior criminal conviction maj’ work an estoppel in favor of the government in a subsequent civil proceeding. Emich Motors Corp. v. General Motors Corp., 340 U. S. 558 , 71 S. Ct. 408 , 95 L. Ed. 534 (1951). See Note, 24 Minn. L. Rev. 522 , 558. See also United States v. De Angelo, 138 F. 2d 466 (3 Cir. 1943); Adkins v. Commonwealth of Virginia, 175 Va. 590 , 9 N. E. 2d 349 , 131 A. L. R. 1312 (Sup. Ct. 1940). Harris v. State, 193 Ga. 109 , 17 S. E. 2d 573 , 147 A. L. R. 980 (Sup. Ct. 1941), is directly in point. There, the defendant, acquitted of murder, was later convicted of the robbery out of which the killing arose. Holding that the two crimes were not the same offense under Georgia law, the Georgia Supreme Court reversed the conviction as ill-founded since the sole issue at the earlier trial was the identity of the defendant. This court reasoned thus: “In the former trial for murder there was not the slightest pretense of justification on the part of the defendant. The whole contention in that case centered upon the single question whether the defendant participated with another in the murder and robbery of the deceased. If he did, he was necessarily guilty of murder. By acquitting him, the jury necessarily found that he did not participate in the transaction. This was the sole issue that was tried and determined. It is now sought, after such a solemn determination, to test again the same issue, and to undo the necessary effect of the former judgment by adjudicating that the defendant did in fact participate in the robbery and murder, from which the jury has *517 already absolved him. Since it undisputably appears that the defendant could not be guilty of the present charge without also being guilty of the crime of which he has been tried and acquitted, he cannot now be put in jeopardy for the purpose of again adjudicating the issue which has already been determined in his favor.” Tlie verdict and judgment of acquittal on the earlier indictments of necessity presupposes the nonparticipation of the accused in the armed robbery of Yager. The verdict of acquittal could not have been reached otherwise; the accused’s exculpation of all complicity in the holdup is indubitably a part of the thing adjudged, and so it is conclusive of the ultimate issuable fact of guilt. Unless this be so, then the citizen in such circumstance is subject to successive prosecutions until a convicting jury is found. I would reverse the judgment and direct a dismissal of the indictment. Mr. Justice Jacobs and Mr. Justice Brennan join in this opinion. For affirmance—Chief Justice Vanderbilt, and Justices Oliphant, Waoheneeld and Burling—4. For reversal—Justices Heher, Jacobs and Brennan—3. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755144. Public record. Not legal advice.