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(- N. J. —, 106 Atl. 416.) That tribunal held that the plea of sustained, and accordingly the jury a former conviction of robbery was found that the offenses are not the not a bar to an indictment for mur- same. The accused was then put on der, even though the homicide trial and convicted of murder in the grew out of the same transaction. first degree, with a recommendation It gave as a reason for coming to by the jury of life imprisonment. this conclusion that the offenses are It is the judgment on this convicnot the same, and that therefore tion, brought on a writ of error inthe doctrine enunciated in State V. to the supreme court and there afCooper, 13 N. J. L. 361, 25 Am. firmed, which is now before us on Dec. 490, was not applicable, and review. remitted the cause to the court of On the question of the legal effioyer and terminer for trial. State cacy of the plea of autrefois convict v. Mowser, 91 N. J. L. 90, 102 Atl. the

the supreme court followed its 363.

former opinion when the case was The accused was then served with before it on demurrer, and affirmed the following bill of particulars, by the judgment for the reasons adthe prosecutor of the pleas:

vanced in that opinion. State v. “The following is a bill of partic- Mowser, 91 N. J. L. 395, 103 Atl. ulars furnished you in the above 805. cause, in compliance with the terms The other question raised and of an order entered therein on the passed upon by the supreme court 24th day of October, 1917:

related to the admissibility of a con"Philip Mowser, late of the town fession made by the defendant. As of Dover, in the county of Morris, the judgment under review must on Friday, the 4th, or Saturday, the be reversed upon a fundamental 5th day of May, 1917, either shortly ground which in effect will preclude before midnight or shortly there- another trial, the legal propriety of after, between the said two days, in the admission of the confession bethe town of Dover, in perpetrating comes purely academic here. It is, or attempting to perpetrate a rob- therefore, unnecessary to decide þery, upon and of one Frederick whether the trial judge erred in adRichards, did wilfully, feloniously mitting the confession of the deand of his malice aforethought, kill fendant as one voluntarily made by and murder the said Frederick him. We cannot, however, permit Richards, contrary to the form of the matter to go entirely unnoticed, the statute, etc. Dated October 26, in view of the fact that the supreme 1917, Charlton A. Reed, Prosecutor court, after deciding that the con

, of the Pleas."

fession was erroneously admitted The defendant thereupon inter- in evidence, held that it was harmposed a plea of autrefois convict, in less error because it appeared that that he already stood convicted of the defendant had entered a plea of the robbery by virtue of his plea of guilty to the robbery and had set guilty thereto, and hence a prosecu- up the facts stated in the confession tion on the indictment for murder in his plea of autrefois convict. Asgrowing out of the perpetration of suming that the supreme court the robbery was barred.

rightly decided that the confession The trial judge, in accordance was improperly admitted in eviwith the views expressed by the su- dence, we cannot concur in the view preme court, instructed the jury of that tribunal that it was harmimpaneled to try the issue raised by less error. The subject will be the plea of autrefois convict that again adverted to, later on, in its the supreme court had practically proper place. disposed of the matter in holding To uphold the judgment of the that the offense of robbery and that supreme court that the plea of of murder are not the same, and, if autrefois convict was not a bar, so, the defendant's plea cannot be under the conceded facts and cir


cumstances of this case, is, in effect, the criminal act done in the perpea direct repudiation of the doctrine tration of the robbery. laid down in State v. Cooper, 13 N. The state, by its bill of particuJ. L. 361, 25 Am. Dec. 490, decided lars, assumed the obligation to esby the supreme court in 1833, fol- tablish the murder by proving that lowed and approved by the court of it was the result of the act of the errors and appeals, in State v. Rosa, accused in the perpetration of the 72 N. J. L. 462, 464, 62 Atl. 696, in robbery. which latter case Chief Justice Section 106 of the Crimes Act, 2 Gummere, speaking for this court, Comp. Stat. p. 1779, declares: "Any says: "The present plea, in our person who, in committing or atopinion, is manifestly insufficient in tempting to commit arson, burglary, a substantial respect. Although it rape, robbery, sodomy, or any unsets out that Galante was shot at lawful act against the peace of this the same time and place that Den- state, of which the probable conseofrio was, and that they were shot quence may be bloodshed, shall kill by the same person, it fails to al- another,

shall be guilty of lege or show that it was the same murder." act which produced both homicides; This is § 66 of the Crimes Act of and this is universally held to be the the Revision of 1821, and was in essential feature in a plea of this force when the case of State v. nature, for it is the character of the Cooper, supra, was decided. act, not the results which flow from Section 107 of the Crimes Act, 2 it, which determines the question of Comp. Stat. p. 1780, a much lathe guilt or innocence of the person ter statute, declares that murder who does it. In State v. Cooper [13 “which shall be committed in perN. J. L. 371, 25 Am. Dec. 490], a petrating or attempting to perpecase of note in our reports upon trate any arson, burglary, rape, this subject, it is said: “The writers robbery, or sodomy, shall be murder concur in stating that these pleas in the first degree.” "must be upon a prosecution for the As there were no degrees of same identical act;"' and, although murder at common law, and all that case was decided over seventy murder was punishable with death, years ago, an examination of the it is quite evident that the later textbooks and of the later decisions statute was enacted to meet the sitbearing upon this point will dis

uation caused by the statutory clas

sification of murder into murder of close no change or modification of

the first and murder of the second this rule."

degree. To be consistent with the legal

The conspicuous salient fact is rule enunciated by this court in

that the perpetration or the attempt State v. Rosa and, in the supreme

to perpetrate any of the crimes court, in State v. Cooper, the prime mentioned in $ 107, resulting in the inquiry, in the present case, must killing of another, is an essential be whether or not the murder was

and integral part of murder in the the result of the criminal act of the

first degree, in that class of cases. accused done in the perpetration of The supreme court attempts to the robbery to which he had pleaded distinguish the present case from guilty. If it was, then upon prin- the Cooper Case, but a comparison ciple and authority of the cases just of the facts of the latter case with cited, the prosecution for murder is those of the case under discussion barred.

will make it clearly appear that The amplification of the indict. they are indistinguishable in prinment, by the bill of particulars ciple. served upon the plaintiff in error, In the Cooper Case, the prisoner discloses that the murder of which set fire to a dwelling house, which he was accused was the result of occasioned the death of an inmate (- N. J. —, 106 Atl. 416.) He was put on trial for arson and was the act of the guilty hand convicted. At a following term the which applied the torch that set in indictment for murder was moved train a result which, by statute, is against him, and he interposed a declared to be murder in the first plea of autrefois convict, which degree. And it is that act which was plea was overruled by the court of the sole legal prop to the indictoyer and terminer; but further pro- ment for murder. In the present ceedings were suspended until the case, it is the act of perpetrating or opinion of the supreme court could attempting to perpetrate a robbery, be had on the validity of the plea. involving an attack with violence

The supreme court held that the upon the person to accomplish the plea was valid and a bar to the pros- object of robbery, that is made the ecution of the indictment for mur- basis of the indictment for murder der.

against the plaintiff in error. AcIn State v. Rosa, supra, this cording to the view taken by the sucourt, in considering and constru- preme court, in cases of robbery, ing the decision in the Cooper Case, burglary, rape, or sodomy, where declared the legal rule to be that death results in the commission or where the crimes arise out of the attempt to commit any one of these same transaction it is the character crimes, the offender may be indictof the act, not the results which flow ed for any one of these offenses from it, which determines the ques- first, and, if acquitted or convicted, tion of the guilt or innocence of may be subsequently indicted for the person who does it.

murder, because rape or sodomy or In the Cooper Case the indict burglary is not, in its character, the ment charged that the accused did same offense as murder. Such a wilfully and maliciously burn a cer- narrow construction was repudiattain dwelling house, that by reason ed in the Cooper and Rosa Cases. It and means of the said burning the may be readily conceded that the deceased was mortally burned and crime of murder and the crime of killed, and that the said Cooper robbery are not the same offense. feloniously and wilfully, of his mal. But that is of no importance here. ice aforethought, did kill and mur- Neither are the crime of arson and der the deceased, against the form that of murder the same offense. of the statute, etc.

The supreme court opinion does not In the present case the bill of par- make it clear why the crime of articulars sets forth that in perpe- son, one of the crimes mentioned by trating or attempting to perpetrate statute, which, if in the commission a robbery the accused did wilfully thereof death results, makes the ofand feloniously, and of his malice fense murder in the first degree, aforethought, kill and murder the invokes a different legal rule than deceased against the form of the obtains in the commission of rape, statute, etc.

burglary, robbery, or sodomy. The Upon what basic grounds, then, crimes mentioned are associated can these two cases be properly together in a single statute, and the distinguished from each other? In legislature has not seen fit to make our view of the firmly settled law of any such distinction. Neither in this state, of which the Cooper Case principle nor in substance is such a is the pioneer expository, no marked distinction permissible. distinguishable feature has been The learned and careful author of suggested, and we are unable to the opinion of the supreme court, in perceive how, in principle, attempting to distinguish the presstraight line of demarcation can be ent case from the Cooper Case, says: drawn between them.

“For there the murder was charged It is clear that it was the act of to have been perpetrated by acts arson, which resulted, undesigned- which constituted the crime of arly, in the death of the deceased; it son, of which the defendant had

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been convicted, and an acquittal the murder. But why the result is would have amounted to a finding not the same in the case of an althat he did not commit the act caus- leged murder averred to have been ing the murder charged, for it could committed in the perpetration of a only be supported by proof of the robbery, which crime involves vioidentical facts necessary to prove lence to the person, is incomprethe crime of arson; the arson being hensible, in sound reasoning and

necessary to justify a con- principle. viction in either case. The court in The legislature has made the that case was dealing with two dis- crime of robbery a constituent eletinct felonies growing out of the ment of murder in the first degree, same identical act, and where one is where death ensues from the perthe necessary ingredient in the oth- petration or attempt to perpetrate er;' while here the act of robbery is the robbery. Evidently, the legisnot a necessary ingredient of the lature had in mind that robbery other crime, for a murder is not from the person is accompanied by necessarily a part of the act of rob- violence, oftentimes by the use of bery which may be accomplished deadly weapons, by wounding and by a subsequent distinct act.” 91 N. maiming the victim, as well as by J. L. 93, 102 Atl. 365.

putting him in bodily fear. In order This statement entirely overlooks to protect human life and property, the material fact that the bill of the lawmaking power declared robparticulars furnished to the defend- bery to be murder in the first deant by the state, in the present case, gree, where the death of a victim charges that death resulted in the ensued in the perpetration of the perpetration of the robbery, and robbery, irrespective of the fact clearly negatives the idea that the whether the violence used was great robbery was accomplished by a dis- or small. It would, therefore, be tinct act. In fact, the blow struck wholly immaterial whether or not was an act done in the perpetration the victim was struck on the head of the robbery, and, by comparison, with a stick or died of fright; the the robbery and homicide, being di- guilt of murder in the first degree rected against the person, were attaches to the act of robbery under more logically the products of a the statute. single act than were the arson The supreme court proceeded upand homicide, which were produced on the theory that the true test to by the lighting of the torch be applied in a case of a plea of secand applying it to the dwelling, ond jeopardy is that, where the acts in their nature separate and facts required to convict on the secdistinct, but, nevertheless, were ond indictment would necessarily considered in the Cooper Case, have convicted on the first, a concomponent parts of the same act viction on the first will bar the toward the commission of the arson prosecution of the second. And and homicide. The fact that the in- since the evidence to convict under mate was burned to death is incon- the indictment for robbery would sequential, for if he had jumped out not have been sufficient to convict of of the window to escape the fire, and murder, therefore the legal identity was killed by the fall, the perpe- of the offenses fails. trator of the arson would neverthe- The unsoundness of this reasonless be guilty of murder.

ing lies in assuming that the ofIt is conceded by the supreme fenses must have legal identity in court that in a case of arson, if the all cases, and in ignoring a most esaccused were acquitted of the arson, sential factor, that is, whether or he could not have been lawfully not the offenses grew out of the tried for murder, since the identical same transaction or were the prodproof necessary to establish the ar- uct of a single criminal act. son is equally necessary to establish The principle to be extracted

and murder.

(- N, J. ,

106 Atl. 416.) from well-considered cases is that doctrine which holds it to be a bar by the term, "same offense,” is not rests firmly on adjudication also." only meant the same offense as an Applying to the facts of the presentity and designated as such by ent case the test which is to be exlegal name, but also any integral tracted from State v. Cooper and part of such offense which may sub- State v. Rosa, the inquiry presentject an offender to indictment and ed is: Did the robbery and murpunishment. Reg. ex rel. Thompson der grow out of the same transac. v. Walker, 2 Moody & R. 457; Reg. tion? The state by its bill of parv. Stanton, 5 Cox, C. C. 324.

ticulars states that they did, and, When such integral part of the the plaintiff in erprincipal offense is not a distinct ror having pleaded former convicaffair, but grows out of the same guilty to the rob- tion-robbery transaction, then an acquittal or bery, the prosecuconviction of an offender for the tion on the indictment for murder lesser offense will bar a prosecution is barred. for the greater.

This is a convenient place to To adopt any other view would again advert to the pronouncement tend to destroy the efficacy of the of the supreme court that the plea doctrine governing second jeopardy of autrefois convict to the indictwhich is embedded in our organic ment for murder admits that the law as a safeguard to the liberties facts in the indictment for robof the citizens.

bery were the same as those in In discussing this interesting the present indictment for murtopic, Mr. Bishop, in vol. 1, 5th ed. der, and therefore the defendant 1057, of his learned treatise on suffered no harm by the admisCriminal Law, says: “But where sion of a confession which the trial the conviction or acquittal is upon an judge held to be admissible, and indictment covering no more than the supreme court held to be not. one of the smaller crimes, included, We think otherwise. Assuming that as before mentioned, within a larg the prisoner's confession was inader, the question arises, whether this missible, the plea of autrefois conwill bar an indictment embracing

vict could not be used as evidence one of the larger. If it will not bar, against him for the following rea

son: then the prosecutor may begin with

The right of the defendant to the smallest, where there are several crimes included with one an

this plea is given to him by the com

mon law, safeguarded by the Conother, and obtain successive convic

stitution and by statute, which plea tions ending with the largest; while,

may not be converted into an inif he had begun with the largest, he

strument of mischief and evil. It must there stop, a conclusion re

cannot, in justice, be used as a conpugnant to good sense. Besides, as fession or admission when it was the larger includes the smaller, it is never intended as such. No person impossible a defendant should be who had been acconvicted of the larger without be- quitted or convict- neous admission

Appeal-erroing convicted of the smaller; and

an offense of evidence

effect of plea of thus, if he has been already found could safely plead autrefois conguilty of the smaller, he is, when on former jeopardy to trial for the larger, in jeopardy a a second prosecution if the facts set second time for the same, namely, up in his plea are to be construed the smaller offense. Some appar- to be admissions of guilt. The conent authority, therefore, English stitutional provision and statute and American, that a jeopardy for would be rendered practically usethe less is no bar to an indictment less. for the greater, must be regarded For the reason that the plaintiff as unsound in principle; while the in error should have succeeded on


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