The opinion of the court was delivered by
Wachenfeld, J.
At about 3 p. m. in the afternoon of September 20, 1950, three or four patrons, one of whom was Elmer S. Yager, were seated at the bar of Gay’s Tavern on Bergen Boulevard in Fairview, New Jersey, sipping beer and observing a telecast of a baseball game. The tranquility of that scene was interrupted by three men, each carrying a gun, entering through the front door of the tavern. One of them brusquely announced: “This is a stick-up, everybody line up against the wall.” The patrons, together with the owner of the tavern, proceeded to do as they were told, accelerated by slaps and shoves administered by the stick-up men. Once lined up against the wall, each was relieved of his valuables and money and then taken into the kitchen. They were placed upon the floor, their hands and legs being bound. Their mission accomplished, the robbers left the tavern and made a get-away unimpeded.
The not uncommon factual pattern recited above gives rise, on this appeal, to an arresting question of law growing [499]*499out of legal proceedings subsequently taken against the defendant, who the jury below was satisfied beyond a reasonable doubt was one of the robbers.
Within a matter of weeks after the robbery, the victims were shown photographs of criminals known to have engaged in activities similar to those described above. Two of the victims identified the photograph of one man, the present defendant, as one who had engaged in the robbery. About a year later, the defendant was apprehended by the New York police authorities for another offense and returned for prosecution here.
Subsequently, the Bergen County grand jury returned three indictments, each containing two counts, against the defendant, the first count being for armed robbery of a specific individual and the second count for carrying a concealed weapon. For some reason, which does not appear in the record before us, no indictment was returned against the defendant for having committed armed robbery upon Elmer S. Yager; the victims named in the indictments were limited to Patsy Caseio, Louis Capezzuto, and Charles Galiardo.
On May 26 and 27, 1952, trial was had on the three indictments, and each of the three indictment-victims, Caseio, Capezzuto and Galiardo, was called to the witness chair by the State. However, on the stand they either disclaimed ability to identify the defendant or positively identified him as not having been one of the robbers. Each of these three witnesses recanted his prior positive identification of the defendant made through the use of his photograph. The State was able to produce only one witness, Yager, who gave an unqualified identification of the defendant at the trial.
' The defense was an alibi, but it was unsupported by any witness other than the defendant.
The trial court, after dismissing the concealed weapon counts of the three indictments, submitted the ease to the jury, which returned a verdict of not guilty.
[500]*500Probably stimulated by the trial judge’s comment as to the obvious guilt of the defendant, referred to in the appellant’s brief, the Bergen County grand jury, within a matter of days after the acquittal, returned a two-count indictment against the defendant charging him, in the first count, with the commission of armed robbery upon Elmer S. Yager, and in the second count with carrying a concealed weapon in violation of N. J. S. A. 2:176-41 (now N. J. S. 2 A :151—41).
However, before the new indictment could be moved for trial, the defendant was returned to New York for incarceration for an offense committed within that jurisdiction. As a result, the trial of the Yager indictment did not get under way until October 18, 1954.
At the second trial, the State offered only one witness, Yager, who again positively identified the defendant as one of the three robbers who had entered the tavern on September 20, 1950 and held him up. After the defense had attacked Yager’s ability to recall places and incidents occurring more than four years previously, on redirect examination he was asked how he could remember the defendant on the afternoon of September 20, 1950. He replied impressively: “Anybody would have'a gun stuck into them, they would sure remember the fellow’s face, directly in front.”
The other three victims of the robbery testified on behalf of the defendant at the second trial. Their testimony was similar to that which they had given at the first trial. The defendant took the stand in his own behalf and again offered an alibi defense. Fo witnesses were offered to support this defense, he having testified they were unavailable by reason of death or unknown whereabouts.
The jury returned a verdict of guilty on both counts of the indictment. Eollowing sentencing, the concealed weapon count was ordered dismissed by the trial judge.
The defendant was permitted to appeal to the Appellate Division as an indigent person from the judgment of conviction on the first count of the indictment. As on the appeal to this court, no question was there raised as to the [501]*501defendants guilt or innocence, the appeal being limited solely to the question whether the second trial, on the Yager indictment, violated our constitutional prohibition against double jeopardy, a defense which the defendant had also raised at the trial. The Appellate Division affirmed, State v. Hoag, 35 N. J. Super. 555 (App. Div. 1955), and the defendant appealed to us as of right, see R. R. 1:2-1 (a), and as an indigent person pursuant to R. R. 1:2-7. The appeal was originally considered without oral argument; subsequently we assigned counsel to the defendant. New briefs were presented and counsel argued the cause before us at length.
The constitutional question is advanced here by the defendant in the following form: “The basic issue in this ease is whether the State may subject an individual to a separate trial for the robbery of each victim when the robbery of all was at the same time and at the same place.”
The New Jersey Constitution of 1947 states the prohibition against double jeopardy in the same language as did the 1844 Constitution:
“No person shall, after acquittal, be tried for the same offense.” N. J. Constitution, Art. I, par. 11. See N. J. Constitution of 1844, Art. I, par. 10.
The difficulty, of course, lies in ascertaining what is meant by the constitutional concept of “the same offense,” acquittal, or conviction, of which will preclude a second trial. The question has arisen in many contexts, as, for example, where a person accused of a minor offense is acquitted and he is again charged on the same facts in a more aggravated form. See State v. Lobato, 7 N. J. 137, 146 (1951); State v. Shoopman, 11 N. J. 333 (1953); State v. Cooper, 13 N. J. L. 361 (Sup. Ct. 1833); State v. Mowser, 92 N. J. L. 474 (E. & A. 1919). Double jeopardy may also be called into play where a single act involves multiple consequences, usually the consequences being experienced by a number of individuals. See State v. Cosgrove, 103 N. J. L. 412 [502]*502(E. & A. 1927); State v. Pennsylvania R. R. Co., 9 N. J. 194 (1952).
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The opinion of the court was delivered by
Wachenfeld, J.
At about 3 p. m. in the afternoon of September 20, 1950, three or four patrons, one of whom was Elmer S. Yager, were seated at the bar of Gay’s Tavern on Bergen Boulevard in Fairview, New Jersey, sipping beer and observing a telecast of a baseball game. The tranquility of that scene was interrupted by three men, each carrying a gun, entering through the front door of the tavern. One of them brusquely announced: “This is a stick-up, everybody line up against the wall.” The patrons, together with the owner of the tavern, proceeded to do as they were told, accelerated by slaps and shoves administered by the stick-up men. Once lined up against the wall, each was relieved of his valuables and money and then taken into the kitchen. They were placed upon the floor, their hands and legs being bound. Their mission accomplished, the robbers left the tavern and made a get-away unimpeded.
The not uncommon factual pattern recited above gives rise, on this appeal, to an arresting question of law growing [499]*499out of legal proceedings subsequently taken against the defendant, who the jury below was satisfied beyond a reasonable doubt was one of the robbers.
Within a matter of weeks after the robbery, the victims were shown photographs of criminals known to have engaged in activities similar to those described above. Two of the victims identified the photograph of one man, the present defendant, as one who had engaged in the robbery. About a year later, the defendant was apprehended by the New York police authorities for another offense and returned for prosecution here.
Subsequently, the Bergen County grand jury returned three indictments, each containing two counts, against the defendant, the first count being for armed robbery of a specific individual and the second count for carrying a concealed weapon. For some reason, which does not appear in the record before us, no indictment was returned against the defendant for having committed armed robbery upon Elmer S. Yager; the victims named in the indictments were limited to Patsy Caseio, Louis Capezzuto, and Charles Galiardo.
On May 26 and 27, 1952, trial was had on the three indictments, and each of the three indictment-victims, Caseio, Capezzuto and Galiardo, was called to the witness chair by the State. However, on the stand they either disclaimed ability to identify the defendant or positively identified him as not having been one of the robbers. Each of these three witnesses recanted his prior positive identification of the defendant made through the use of his photograph. The State was able to produce only one witness, Yager, who gave an unqualified identification of the defendant at the trial.
' The defense was an alibi, but it was unsupported by any witness other than the defendant.
The trial court, after dismissing the concealed weapon counts of the three indictments, submitted the ease to the jury, which returned a verdict of not guilty.
[500]*500Probably stimulated by the trial judge’s comment as to the obvious guilt of the defendant, referred to in the appellant’s brief, the Bergen County grand jury, within a matter of days after the acquittal, returned a two-count indictment against the defendant charging him, in the first count, with the commission of armed robbery upon Elmer S. Yager, and in the second count with carrying a concealed weapon in violation of N. J. S. A. 2:176-41 (now N. J. S. 2 A :151—41).
However, before the new indictment could be moved for trial, the defendant was returned to New York for incarceration for an offense committed within that jurisdiction. As a result, the trial of the Yager indictment did not get under way until October 18, 1954.
At the second trial, the State offered only one witness, Yager, who again positively identified the defendant as one of the three robbers who had entered the tavern on September 20, 1950 and held him up. After the defense had attacked Yager’s ability to recall places and incidents occurring more than four years previously, on redirect examination he was asked how he could remember the defendant on the afternoon of September 20, 1950. He replied impressively: “Anybody would have'a gun stuck into them, they would sure remember the fellow’s face, directly in front.”
The other three victims of the robbery testified on behalf of the defendant at the second trial. Their testimony was similar to that which they had given at the first trial. The defendant took the stand in his own behalf and again offered an alibi defense. Fo witnesses were offered to support this defense, he having testified they were unavailable by reason of death or unknown whereabouts.
The jury returned a verdict of guilty on both counts of the indictment. Eollowing sentencing, the concealed weapon count was ordered dismissed by the trial judge.
The defendant was permitted to appeal to the Appellate Division as an indigent person from the judgment of conviction on the first count of the indictment. As on the appeal to this court, no question was there raised as to the [501]*501defendants guilt or innocence, the appeal being limited solely to the question whether the second trial, on the Yager indictment, violated our constitutional prohibition against double jeopardy, a defense which the defendant had also raised at the trial. The Appellate Division affirmed, State v. Hoag, 35 N. J. Super. 555 (App. Div. 1955), and the defendant appealed to us as of right, see R. R. 1:2-1 (a), and as an indigent person pursuant to R. R. 1:2-7. The appeal was originally considered without oral argument; subsequently we assigned counsel to the defendant. New briefs were presented and counsel argued the cause before us at length.
The constitutional question is advanced here by the defendant in the following form: “The basic issue in this ease is whether the State may subject an individual to a separate trial for the robbery of each victim when the robbery of all was at the same time and at the same place.”
The New Jersey Constitution of 1947 states the prohibition against double jeopardy in the same language as did the 1844 Constitution:
“No person shall, after acquittal, be tried for the same offense.” N. J. Constitution, Art. I, par. 11. See N. J. Constitution of 1844, Art. I, par. 10.
The difficulty, of course, lies in ascertaining what is meant by the constitutional concept of “the same offense,” acquittal, or conviction, of which will preclude a second trial. The question has arisen in many contexts, as, for example, where a person accused of a minor offense is acquitted and he is again charged on the same facts in a more aggravated form. See State v. Lobato, 7 N. J. 137, 146 (1951); State v. Shoopman, 11 N. J. 333 (1953); State v. Cooper, 13 N. J. L. 361 (Sup. Ct. 1833); State v. Mowser, 92 N. J. L. 474 (E. & A. 1919). Double jeopardy may also be called into play where a single act involves multiple consequences, usually the consequences being experienced by a number of individuals. See State v. Cosgrove, 103 N. J. L. 412 [502]*502(E. & A. 1927); State v. Pennsylvania R. R. Co., 9 N. J. 194 (1952).
The test most widely employed in this jurisdiction to resolve the double jeopardy question in such circumstances is whether the evidence necessary to sustain the second indictment would have been sufficient to secure a legal conviction on the first. State v. DiGiosia, 3 N. J. 413, 419 (1950); State v. Lobato, supra, 7 N. J., at page 144; State v. Shoopman, supra, 11 N. J., at page 335.
The defendant acknowledges that the application of the “same evidence” test results in a denial of the alleged double jeopardy violation in the ease sub judice. Eor the evidence needed to support the Yager indictment obviously would not have been sufficient to secure conviction upon the three earlier indictments, inasmuch as the latter indictments charged a forcible taking of different property from three diff erent individuals.
Nevertheless, it is urged the present factual pattern falls within the “single act” category, and despite the fact several persons were robbed, but a single “offense,” in the constitutional sense, was committed by the defendant for which he may not be retried. It is said the “same evidence” test is modified in this jurisdiction where there are multiple victims of a “single act.” See State v. Cosgrove, supra; State v. Pennsylvania R. R. Co., supra.
However, we cannot concede that the defendant may avail himself of the plea in this case under any recognized concept of double jeopardy. Eor the fact remains that there was not but a “single act” committed by this defendant which simultaneously, and without more, affected several individuals. At the very least, putting aside the more subjective element of placing each of the victims in fear, the crime with which the defendant was charged in each indictment required the commission of a separate and independent act with respect to each victim, i. e., the forcible taking of the victim’s property. Additionally, to be precise, it was in fact committed at a different time, either prior or subsequent to the other independent acts charged in the other indictments. As was [503]*503said in People v. Lagomarsino, 97 Cal. App. 2d 92, 217 P. 2d 124, 129 (D. Ct. App. 1950) :
“Whatever conflict may exist in the cases involving offenses against property, when we come to offenses against persons, there is more unanimity. Particularly is this true of robbery eases, the offenses here involved. The majority, and certainly the better rule, is that there is a separate offense committed against each person robbed. Obviously, a robbery of several persons, where property is removed from each person, involves a separate act and a separate intent for each victim.”
See also People v. Rodgers, 102 Misc. 437, 170 N. Y. S. 86 (Sup. Ct. 1918), affirmed 184 App. Div. 461, 171 N. Y. S. 451 (App. Div. 1918), affirmed 226 N. Y. 671, 123 N. E. 882 (Ct. App. 1919).
The subject matter has evoked many divergent and conflicting reactions and has engendered a host of comment. See, e. g., 65 Yale L. J. 339 (1956); Lugar, “Criminal Law, Double Jeopardy and Res Judicata ” 39 Iowa L. Rev. 317 (1954). Nevertheless, Judge Jayne, below, in two short paragraphs suecintly stated and applied the basic reasoning and philosophy of the New Jersey decisions to the case sub judice. His appraisal, which coincides with our own views, was (35 N. J. Super., at page 560) :
“Neither the identical act nor the same evidence norms avail the defendant in the present ease. Conceivably the one act of brandishing a pistol in a menacing manner might have simultaneously placed Cascio, Capezzuto, Galiardo, and Yager in a state of fear and intimidation, but to constitute robbery, the act must necessarily he complemented by the additional and successive act of taking ‘from the person of another, money or personal goods and chattels, * *
At his former trial the defendant was not charged with placing Yager in fear and taking any money or personal property from him. Surely evidence that the defendant robbed Yager would not be necessary to establish his guilt of robbing Cascio, Capezzuto, and Galiardo. The robbing of Yager was not an essential ingredient or legally integral part of the alleged offenses of robbing the other three.”
The conclusion finds support in an imposing array of authority there cited.
[504]*504Next, the defendant contends that even if the plea of double jeopardy does not preclude a second prosecution in the instant case, nevertheless the jury’s verdict of not guilty in the first trial prevents relitigation of any fact encompassed by that verdict under the principle of res judicata. See Sealfon v. U. S., 332 U. S. 575, 68 S. Ct. 237, 92 L. Ed. 180 (1948); U. S. v. Oppenheimer, 242 U. S. 85, 37 S. Ct. 68, 61 L. Ed. 161 (1916); Harris v. State, 193 Ga. 109, 17 S. E. 2d 573, 147 A. L. R. 980 (Sup. Ct. 1941). The only controverted issue of fact in the first trial, it is said, was the identity of the defendant as one of the robbers whp held up Gay’s Tavern, and since the first jury acquitted the defendant upon the first three indictments, the State cannot relitigate the issue of the defendant’s identity as the man who held up Yager, inasmuch as he was robbed at the same time and place as the other three.
Actually, it is not the doctrine of res judicata which is invoked here but that of collateral estoppel. Por, as we have already outlined, the offenses charged in the several indictments constitute separate and distinct crimes, and while the parties may be the same, the State’s cause of action under each indictment is a different one. That being the case, the State is precluded only from relitigating those facts which were actually found by the first verdict. Restatement, Judgments, § 68; Scott, "Collateral Estoppel by Judgment,” 56 Harv. L. Rev. 1, 10 (1942).
The first three indictments charged the defendant with the forcible taking of property from three individuals, Cascio, Capezzuto and Galiardo, by placing them in fear. The fourth indictment, on the other hand, alleged that the defendant “did willfully, feloniously and forcibly take from the person of one Elmer S. Yager * * * one wallet and one wrist watch of the value of $50 * * * by putting him in fear.” Thus, in so far as the issues were framed by the indictments, the jury’s acquittal on the first three was not inherently inconsistent with the guilty verdict on the last indictment.
[505]*505Nor was the defendant’s plea of alibi necessarily established by the first jnry’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. People v. Rodgers, supra; State v. Barton, 5 Wash. 2d 234, 105 P. 2d 63 (Sup. Ct. 1940). Obviously, the trial of the first three indictments involved several questions, not just the defendant’s identity, and there is no way of knowing upon which question the jury’s verdict turned. Since it does not appear whether the acquittal was based on the determination of the question as to which the estoppel is sought in the second trial, the first verdict is not conclusive in the second trial. See Restatement, Judgments, § 68, Comment 1.
State v. Barton, supra, is factually very close to the case at hand. There, the defendant was first prosecuted for the crime of first-degree murder, the State alleging the murder was committed during the course of a robbery. Eollowing his acquittal, the State prosecuted for robbery on the same acts as were relied upon in the murder prosecution. In disposing of the claim that the judgment of acquittal in the murder prosecution was res judicata in the robbery prosecution, the court said (105 P. 2d, at page 67) :
“In the murder prosecution, the appellant’s defense of alibi and the various related matters of fact set out in detail in his amended special plea were not actually or necessarily adjudicated, nor can it be said that the issues were limited, as appellant contends. Every material allegation of the information was placed in issue by the appellant’s plea of not guilty, and the state had the burden of proof beyond reasonable doubt. It is not possible to determine whether the jurors returned a verdict of acquittal because they credited the testimony in support of appellant’s alibi, or for the reason that they found the state’s evidence insufficient as to one or more essential elements of the offense charged. They could have utterly disregarded all of the testimony adduced by the appellant in his defense and yet have returned a verdict of not guilty. The verdict and the judgment based thereon were not, therefore, res judicata as to appellant’s alibi, nor as to any other particular fact. They were res judicata only as to the ultimate fact that appellant was not guilty of the crime of which he was accused.”
[506]*506Accordingly, we conclude that the State was not collaterally estopped by virtue of the first verdict from relitigating the defendant's guilt on the Yager indictment.
Finally, the claim is advanced that the re-indictment and retrial of the defendant following his acquittal upon the first three indictments constituted a denial of due process of law under the Fourteenth Amendment of the United States Constitution because it offends fundamental justice. It is contended that to permit piecemeal indictments would allow the State, even though it knows all of the victims, to indict a defendant seriatim for each victim, thereby dragging out the prosecution and denying the defendant his constitutionally protected right to a speedy trial. This type of deliberate harassment by an over-zealous prosecutor, it is said, should not be tolerated.
Counsel for the appellant in his plea exhibits the same philosophy expressed in an article he wrote (10 Rutgers L. Rev. 97 (1955)), urging that if there be any advantage to be derived from the use of such procedure, it should inure to the benefit of the prisoner, although it has always been otherwise in this jurisdiction.
If this procedure has proven a factor in the vigorous administration of the criminal law, it has been for good and not evil, which is apparent by its long continuance. No persuasive reason has been proffered why a change should be made and still another obstacle placed in the path of the prosecuting authorities to prevent the escape of the guilty. When and if the change is made, it should be the product of a legislative mandate and not by judicial overthrow of a long-continued practice. We perceive no constitutional prohibition against the procedure pursued here.
The judgment below is affirmed.