State v. Daly, A-257.

• Citation: 66 A.2d 354
• Decision Date: 18 May 1949
• Docket Number: No. A-257.,A-257.
• Parties: STATE v. DALY et al.
• Court: Superior Court of New Jersey

66 A.2d 354

STATE

v.DALY et al.

No. A-257.

Superior Court of New Jersey, Appellate Division, Part A.

Argued May 2, 1949.

Decided May 18, 1949.

Appeal from Hudson County Court.

Proceedings by State against Bert Daly and Robert O'Connor under indictments charging defendants with nonfeasance in failing to enforce gambling laws of state. From judgment dismissing indictments, the State appeals.

Affirmed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

William P. Gannon, Jersey City, argued the cause for the appellant (Horace K. Roberson, Prosecutor of the Pleas, Jersey City, attorney).

Thomas J. Brogan, Jersey City, argued the cause for the defendants-respondents (Brogan, Hague & Malone, Jersey City, attorneys).

The opinion of the Court was delivered by

EASTWOOD, Judge.

This is an appeal from a judgment of the Hudson County Court, dismissing indictments against defendants, respectively Mayor and Director of Public Safety and Chief of Police of the City of Bayonne, for alleged nonfeasance in failing to enforce gambling laws of this State. The indictments were dismissed on the ground that they lacked certainty and definiteness and failed to specifically inform the defendants of the charges against them, thereby making it impossible to prepare their defense.

It is conceded that the indictments under review are similar to those before the Supreme Court in State v. Jenkins and Mescall, 136 N.J.L. 112, 54 A.2d 804, (1947), which were quashed by that court for the same reasons that were successfully advanced before the Law Division for dismissing the indictments here under review. The common law rule requiring certainty and particularity in indictments is re-affirmed and given continued vitality by our organic law, State and Federal, Article I, Paragraph 10 (Bill of Rights) New Jersey Constitution 1947, N.J.S.A. Const.1947, art. 1, par. 10, providing that ‘the accused shall have the right * * * to be informed of the nature and cause of the accusation’. ‘A salutary rule of the common law’, says the Massachusetts Supreme Court: ‘That no subject shall be held to answer for any crime or offence, until the same is fully and plainly and substantially and formally described to him’. Commonwealth v. Phillips, 16 Pick. 211. Justice Kalisch, speaking for the Supreme Court in State v. Hatfield, 87 N.J.L. 124, 93 A. 677, 678 (1915), declared the requirement of certainty and positiveness in an indictment, quoting the following authority: “Though, in general it may be sufficient to state the fact in the words of the act of Parliament, yet it is not always safe merely to convey the description of the offence in these words; for where the statute describes an offence in such general terms as will embrace a variety of circumstances, a general description, though pursuant to the words of the act, is insufficient unless the circumstances be set out with time, place,' &c. Paley Sum.Conv. 8th ed. 197; Rex v. Jarvis, 1 Burr 148; 1 Str. 494, 495; Hale P.C. 1st Am.ed. ch. 25, p. 187, note 7.'

Chief Justice Case in State v. Jenkins-Mescall, supra, 136 N.J.L. at page 113, 54 A.2d at page 804, in referring to indictments for nonfeasance in office, stated: ‘Misconduct of that nature necessarily consists of a particular incident or of a series of particular incidents. It is not just an attitude. It is action; or it is non-action with respect to specific incidents.’

Alluding further to the requirement of specification, he stated: ‘* * * A defendant is unable to plead or to prepare a defense against such...