State v. Faulks

• Decision Date: 07 June 1922
• Docket Number: No. 5.,5.
• Citation: 117 A. 476
• Parties: STATE v. FAULKS.
• Court: New Jersey Supreme Court

117 A. 476

STATE

v. FAULKS.

No. 5.

Supreme Court of New Jersey.

June 7, 1922.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Essex County.

Harold J. Faulks was convicted of carnal abuse of a girl under 16 years of age, and he brings error. Affirmed.

Kraeiner & Siegler, of Newark, for plaintiff in error.

J. H. Harrison, Prosecutor of the Pleas, and A. Leslie Price, Assistant Prosecutor, both of Newark, for the State.

Argued before GUM MERE, C. J., and PARKER and KALISCH, JJ.

PARKER, J. The defendant was convicted of carnal abuse of a young girl under 16 years of age, C. S. p. 1783, § 115. The conviction is brought before us for review both on strict bill of exceptions and on certificate of the entire record of the proceedings at the trial under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863). The assignments and causes for reversal are identical, except that the latter contains a specification that the verdict was against the weight of evidence. The other three assignments and causes are as follows: First, that evidence was admitted to show act of carnal abuse upon other occasions prior to that specifically charged in the indictment. The next that the court refused to quash the indictment upon which the defendant was tried, upon, the ground that there was pending a previous indictment alleging the commission of the same offense; and, lastly, that the court refused arrest of judgment when thereto moved. The motion in arrest of judgment was made upon the same ground as the motion to quash, and the same considerations apply to both motions.

We take up first the objection of another indictment pending. As to this, it appears that the first indictment was found at the April term, 1921, and charged an act of carnal abuse as having been committed on the 31st of December, 1920. When this indictment was moved for trial, it immediately appeared that on the date specified in the indictment the girl was over 16 years of age, and consequently that there could not be a conviction of carnal abuse thereunder. The Prosecutor then moved to amend the indictment by changing the date of the offense to October 9, 1920, and this amendment appears to have been allowed by the court. We are not directly concerned with the propriety or otherwise of this action because the trial upon the former indictment was suspended and no further proceedings have been had thereon; the present conviction being under a second indictment hereinafter referred to. It may be as well, however, to say that the particular amendment made would seem to be beyond the authority of the court because it manifestly varied the substance of the indictment in such a way that the defendant, if the amendment were proper, would be convicted thereon of the offense of carnal abuse, whereas, at best, under the indictment as it originally stood, he could not have been convicted of more than fornication. This was, consequently, reading in by amendment a crime which was not effectively charged by the jury, and makes applicable the decision of the Court of Errors and Appeals in the recent case of State v. Sing Lee, 94 N. J. Law, 266, 110 Atl. 113. It is quite likely that the Prosecutor perceived this difficulty, and that it was for this reason that the second indictment was found at the September term of court, charging the act as having been committed on the date read into the first indictment by amendment. On this second indictment the defendant was then brought to trial, and the motions to quash and in arrest of judgment were based on the proposition that there was another indictment...