State v. Fromm

• Decision Date: 09 January 1961
• Docket Number: No. A--219,A--219
• Citation: 65 N.J.Super. 30,166 A.2d 832
• Parties: STATE of New Jersey v. Alfred M. FROMM, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 30

65 N.J.Super. 30

166 A.2d 832

STATE of New Jersey v. Alfred M. FROMM, Defendant.

No. A--219.

Superior Court of New Jersey Appellate Division.

Argued Dec. 16, 1960.

Decided Jan. 9, 1961.

John T. Glennon, Elizabeth, for defendant-appellant (Weiner, Weiner & Glennon, Elizabeth, attorneys; John R. Connolly, Elizabeth, of counsel).

John J. Dugan, Asst. Pros., Elizabeth, for the State (H. Douglas Stine, Pros. of Union County, Plainfield, attorney).

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Pursuant to leave granted under R.R. 2:2--3(a), defendant appeals from the denial of his motion to dismiss the indictment, upon the grounds that the indictment is incurably and fatally defective because it is 'uncertain and indefinite' and '(t)he essential facts constituting the offense charged or intended so to be are not set out in the indictment as required by law.'

The indictment is as follows:

'The Grand Jurors of the State of New Jersey, for the County of Union, upon their oaths present that Alfred M. Fromm, between the 1st day of January 1958 and the 18th day of July 1959, inclusive, in the Town of Westfield, in the County of Union, aforesaid, and within the jurisdiction of this Court, unlawfully did alter and falsify documents belonging to the Municipal Court of the said Town of Westfield and to the Office of the Violations Clerk of the Municipal Court of the Town of Westfield, contrary to the provisions of N.J.S. 2A:136--1 (N.J.S.A.) and against the peace of this State, the Government and dignity of the same.'

An indictment must be sufficiently certain to give assurance that the accused is not indicted for one offense and tried for another; * * *' State v. DeVita, 6 N.J.Super. 344, 347, 71 A.2d 390, 391 (App.Div.1950); State v. Ellenstein, 121 N.J.L. 304, 319, 2 A.2d 454 (Sup.Ct.1938); O'Regan and Schlosser, New Jersey Criminal Practice and Procedure, § 89 (1938). It is not enough to name the crime, but the indictment must contain 'a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offense, and the defendant be put upon his trial in chief for another, without any authority.' Linden Park Blood Horse Association v. State, 55 N.J.L. 557, 558, 27 A. 1091 (E. & A. 1893).

If this were not so, the right not to be charged with a crime except upon indictment would be meaningless, for then the trial would be upon what the prosecutor said the grand jury intended and not upon what the indictment alleged. It was for this reason that Chief Justice Beasley said, in Linden Park Blood Horse Association v. State, supra, 55 N.J.L. at page 559, 27 A. at page 1092:

'The rule of the law and of common justice is that the offense must be charged in the indictment in a certain and identifiable form; and this principle is so essential to the personal security of the citizen that it is not to be impaired, no matter how great the particular exigency may be.'

As we said in State v. Williamson, 54 N.J.Super. 170, 187, 148 A.2d 610, 620 (App.Div.1959), affirmed 31 N.J. 16, 155 A.2d 7 (1959):

'The multitude of kinds of criminal offenses known to the law, commonlaw and statutory, and the infinite variations in the factual settings within which particular criminal acts and omissions can take place, defy any judicial formularization by which it can be readily determined whether an indictment has stated all the essential facts of a particular criminal transaction. The approach must necessarily be flexible, and the answer has to rest upon the judicial application of sound common sense, having in mind both the constitutional rights of the accused, mentioned above, and the practicalities of law enforcement and criminal prosecution.'

When we approach the challenged indictment in this fashion, certain things strike us forcibly. The 'documents' are not identified, nor are they described in any fashion except as 'belonging to the Municipal Court * * * and to the office of the Violations Clerk of the Municipal Court of the Town of Westfield * * *.' Webster's New International Dictionary (2d ed. 1955) defines document as 'an original or official paper relied upon as the basis, proof, or support of anything else; in its most extended sense including any writing, book or other instrument conveying information any material substance, as a coin or stone, having on...