State v. Davis

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: FOLEY
• Citation: State v. Davis, 61 N.J.Super. 536, 161 A.2d 552 (N.J. Super. App. Div. 1960)
• Decision Date: 03 June 1960
• Docket Number: No. A--281,A--281
• Parties: STATE of New Jersey, Plaintiff-Respondent. v. Walter N. DAVIS, Defendant-Appellant.

Page 536

61 N.J.Super. 536

161 A.2d 552

STATE of New Jersey, Plaintiff-Respondent. v. Walter N. DAVIS, Defendant-Appellant.

No. A--281.

Superior Court of New Jersey Appellate Division.

Argued March 15, 1960.

Decided June 3, 1960.

Albert G. Besser, So. Orange, argued the cause for defendant-appellant.

C. William Caruso, Sp. Legal Asst., Newark, argued the cause for plaintiff-respondent (Brendan T. Byrne, Essex County Prosecutor, Newark, attorney).

Before Judges PRICE, SULLIVAN and FORLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

This is an appeal from a judgment of conviction entered in the County Court on a jury verdict.

On April 27, 1959 the defendant was brought to trial on a two-count indictment which charged him, Milton Alexander and James D. Crudup (1) with wilfully entering FOLEY. steal, contrary to N.J.S. 2A:94--1, N.J.S.A. and (2) with the theft of a television set, 'the property of Joseph Barr,' contrary to the provisions of N.J.S. 2A:119--2, N.J.S.A. Both Alexander and Crudup had entered pleas of Non vult to the indictment prior to the trial.

During the cross-examination of Barr it developed that both the building and the television set were the property of J. & H. Barr Inc. The State then moved to amend the indictment in respect of the allegations of ownership of premises and the television set. This motion was resisted by defendant and the objection to the amendment was sustained by the trial court upon the authority of State v. Cohen, 105 N.J.L. 529, 147 A. 325 (Sup.Ct.1929). Counsel for defendant then moved for a judgment of acquittal. The prosecutor expressed no opposition and the motion was granted and the jury dismissed.

The prosecutor having indicated his determination to proceed anew, defendant, after consultation with his counsel, agreed to waive indictment by the grand jury and to proceed with a trial by accusation, reserving, however, his right to plead double jeopardy. An accusation was immediately prepared which was identical with the indictment except that 'J. & H. Barr Inc.' was substituted for 'Joseph Barr' and the street address of the building was stated. A plea of 'not guilty' to both counts was entered. Counsel then moved to dismiss the accusation upon the ground that the trial of the charge set forth therein would place the defendant in double jeopardy and thus be violative of N.J.Const.1947, Art. I, § 11, which provides:

'No person shall, after acquittal, be tried for the same offense * * *.'

The motion was denied. It was renewed and again denied at the conclusion of the State's case. On April 29, 1959 defendant was found guilty on both counts of the accusation.

Defendant's first allegation of error is that the accusation filed against him placed him in double jeopardy. It is undisputed that the acquittal entered in the trial of the indictment was not on the merits, but was granted solely on the grounds that there was a variance between the proof and the indictment, and that the holding in State v. Cohen, supra, would not permit an amendment of the indictment to show the true owner of the building and the stolen property.

In order to prevail on a plea of double jeopardy it is incumbent upon a defendant to show that a legal conviction was possible under the first indictment upon the facts alleged in the subsequent charge. Thus it is of focal significance here to determine whether the indictment first lodged against Davis was capable of sustaining a conviction upon the facts of this case or whether the variance between the proof and the indictment was fatal. If a fatal variance existed, the indictment would never have placed the defendant in jeopardy of the offense alleged with the result that that defense had no application to the proceedings under the subsequent accusation. See generally 1 Anderson, Wharton's Criminal Law & Procedure, § 140, p. 317 (1957). However, if it is determined that the variance was immaterial, with the result that the indictment was capable of sustaining a conviction upon the facts as they were subsequently developed, the defense may be a valid one.

Although there are decisions which adhere to the rule that a conviction is sustainable under an indictment only if the proofs developed adhere strictly to the allegations of the indictment, see, e.g., Young v. State, 185 Tenn. 596, 206 S.W.2d 805 (Sup.Ct.1947); Winn v. State, 138 Tex.Cr.R. 202, 135 S.W.2d 118 (Crim.App.1940); cf. State v. Wright, 339 Mo. 41, 95 S.W.2d 1159 (Sup.Ct.1936), the weight of authority points to the view that if the proof presented Substantially adheres to that outlined in the indictment, and the indictment (1) supplies sufficient information to apprise the defendant of the actual charge against him, thus avoiding any possible prejudice, and (2) protects him against a subsequent prosecution for the same offense, the variance will be deemed immaterial. See generally, 1 Underhill, Criminal Evidence (5th ed. 1956), § 85, pp. 139--40; 2 Anderson, Wharton's Criminal Evidence (12th ed. 1955), § 653; see, e.g., People v. Silverman, 33 Cal.App.2d 1, 92 P.2d 507, (Ct.App.1939); Taulbee v. Commonwealth, 304 Ky. 551, 201 S.W.2d 723 (Ct.App.1947); Brannon v. State, 94 Okl.Cr. 261, 234 P.2d 934 (Crim.Ct.App.1951); cf. State v. Trunfio, 58 N.J.Super. 445, 156 A.2d 486 (App.Div.1959); Evans v. State, 60 Ga.App. 597, 4 S.E.2d 502 (Ct.App.1939); O'Brien v. State, Tenn., 326 S.W.2d 759 (Sup.Ct.1959); Note, 47 Colum.L.Rev. 693 (1947).

In People v. Silverman, supra, defendant was charged with having issued a check with intent to cheat and defraud C. C. Smith and the National Newark & Essex Bank of Newark, New Jersey. At the trial it appeared that Smith was merely the cashier at the hotel in which defendant had stayed and that it was the hotel, not Smith, which suffered the loss and was defrauded. In rejecting the argument that this created a material variance, the court said:

'If the information charges the offense in such manner that the defendant is apprised of the act with which he is charged with sufficient certainty to enable him to make a defense thereto, if he is not misled by any statement contained in the information, and the transaction is so identified that the defendant, by a proper plea, may protect himself against another prosecution for the same offense, it must be held that the allegations are sufficient to sustain the conviction when an attack is made upon the ground of variance. It has been frequently held that convictions may be upheld notwithstanding the informations stated erroneous names as owners of stolen property.' 92 P.2d at page 509.

In Taulbee v. Commonwealth, supra, the defendant was indicted for grand larceny by 'taking, stealing and driving away the motor vehicle or car of Elmer Barker * * *.' The proofs showed that although the automobile was registered in the name of Barker, it belonged to Lyons & Carnahan Barker's employer, who had entrusted the vehicle to Barker to assist him in the performance of his duties. In construing section 128 of the Criminal Code of Practice, and holding that no material variance existed the Kentucky Court of Appeals said:

"'Section 128, Cr.Code, was intended to modify the rigorous requirements of the common law as to the description of the person or property injured. When the act can be identified, there is no danger of a defendant being put in jeopardy twice for the same offense."

'Appellant was indicted for taking a particular automobile at a particular time and place. The variance as to ownership was not material in view of the fact that the offense was described in other respects with sufficient certainty to identify the act, and the circumstances were such as not to mislead appellant in making his defense or to expose him to the danger of being again put in jeopardy for the same offense.' 201 S.W.2d 724.

While New Jersey has no specific provision comparable to section 128 in its rules of practice, a similar philosophy has been noted by our courts in the recent decision of State v. Trunfio, supra where this court, in discussing the sufficiency of an indictment which named as owner one who had merely a possessory interest (bailee) in the stolen goods, said:

'It has been pointed out that an indictment of State v. Trunfio, supra, where this court, in discussing the sufficiency of an indictment which named as owner one who had merely a possessory interest (bailee) in the stolen goods, said:

'It has been pointed out this an indictment for larceny is sufficient even when it alleges the owner of the property is unknown (Cohen, supra, 105 N.J.L. at page 534, 147 A. at page 326). There may be larceny by one thief from another (Brown, supra), or of contraband (Cohen, supra). It is plain, therefore that the essential element of larceny is not that the property belonged to a specific person, but rather that it was the property of someone other than the thief. 32 Am.Jur., Larceny, § 113, p. 1024 (1941). For that reason the Florida Supreme Court held in Hearn v. State of Florida, 55 So.2d 559, 561, 28 A.L.R.2d 1179, 1181 (1951) that 'the names of the owners of the stolen property constitute no part of the offense. They are stated in the information primarily as a matter of description for the purpose of identification and to show ownership in a person or persons other than the accused.'' 58 N.J.Super. 448, 156 A.2d 487.

While the Trunfio decision turned specifically upon the issue of the sufficiency of an indictment where the party named as owner holds a special interest, its effect is nonetheless felt here.

In the instant case the indictment specified: the date of the alleged offense; the city in which it was committed; the identity of the stolen property and the place from which it was taken. And we cannot overlook the facts, that defendant was apprehended at the property described in the indictment as Joseph Barr's; that Joseph Barr was the president of J. & H. Barr Inc.; and that because of his...