State v. Grothmann, A--153
| Decision Date | 25 June 1953 |
| Docket Number | No. A--153,A--153 |
| Parties | STATE v. GROTHMANN. |
| Court | New Jersey Supreme Court |
Louis Winer, Morristown, argued the cause for appellant.
John D. Collins, County Prosecutor, Morristown, argued the cause for the State.
The opinion of the court was delivered by
Defendant was convicted on two indictments, numbered 47 and 48, charging that he induced a female child of 12 years of age in the first case, and another such child of 9 years in the second, 'to submit to the doing' of a specified 'act which would tend to debauch * * * and impair the morals' of the child, contrary to N.J.S. 2A:96--3, N.J.S.A., for which R.S. 2:117--6.1, N.J.S.A., was later substituted without objection. The indictments were tried together. Each included a count for assault and battery on the particular child; but that count was dismissed by the county judge before submission of the cases to the jury.
The Appellate Division of the Superior Court affirmed the judgments of conviction. 24 N.J.Super. 190, 93 A.2d 605, 606 (1953). We certified the causes for appeal on defendant's motion. 11 N.J. 593, 95 A.2d 645.
The basic question is whether defendant's constitutional rights were infringed by amendments of the indictments directed by the county judge upon the close of the State's case at the instance of the county prosecutor.
Indictment No. 47 alleged the commission of the offense on November 1, 1950. No. 48 charged in several counts three separate and distinct offenses involving the younger child on the same day: the first in Boonton, without a more particular designation of the place; the second, in a bedroom of defendant's home in Boonton; and the third, in the cellar of his home. No. 47 was amended to state the offense was committed 'on a date between April 1, 1951, and May 8, 1951'; No. 48 was amended to read that the offense occurred 'on a date between November 1, 1950 and May 8, 1951.' There was an acquittal on the second and third counts of the matter indictment.
The Appellate Division said that the testimony of the children 'disclosed without objection the recurrent commission' by the accused 'of such unlawful practices at intervals over a period of the two preceding years,' and in consequence the indictments were amended, but as amended 'neither indictment charged the occurrence of more than one offense.' And reference was made to the instruction given the jury that 'the Prosecutor is tied down to a proof of crime as charged in the indictment to a date which falls within those dates as I outlined them.'
But the effect of the amendments and the charge was to render the accused liable to conviction for an offense against each child not the subject of an indictment by a grand jury in accordance with the guaranty of Article I, paragraph 8 of the State Constitution of 1947 that no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, save in certain cases not here pertinent. The amendments, made at the close of the State's case on the prosecutor's motion, extended the time specification of the indictments to include in each at least two separate and distinct offenses committed, so the children testified, on days other than the day named in the indictment. One of the children testified that the accused had been 'doing this to' her 'around two or three years'; the other said on a preliminary examination that it occurred 'almost every time' she 'went in the car,' but she testified at the trial that there were but two such offenses. As to indictment No. 47, the prosecutor said, on the argument of the motion to amend, that there were 'two occasions,' and 'both' between April 1, 1951 and May 8, 1951; as to No. 48 he referred to the child's testimony that the offense was perpetrated 'on numerous occasions, going back' to November 1950. And the judge charged that the jury's 'sole duty' was to determine whether 'a crime of the nature complained of in the indictment' occurred within the time covered by the amendment.
Objection to the course thus taken was seasonably made.
An indictment is amendable in form but not in substance. The substantive process is exclusively the grand jury's under the constitutional limitation cited supra. And an amendment in matter of form is not permissible if thereby the accused will suffer prejudice to his substantial rights. By the early common law an indictment was not amendable. And this is still the federal rule with some modifications.
It is fundamental in the constitutional limitation that an indictment is not amendable by the court to charge an offense not found by the grand jury, either by a substitution of offenses or to supply substantive omissions. State v. Startup, 39 N.J.L. 423 (Sup.Ct.1877). There is a basic distinction in this regard between continuous and noncontinuous offenses. Crimes of the class now before us are not continuous in nature; and an indictment alleging such an offense on the 10th day of a particular month was held not amendable to charge the commission of the offense on the 1st and 3d days of the same month, for that would mean the inclusion of a crime for which the defendant 'was not indicted by the grand jury'; it was a 'grave fault' to 'allow an amendment which in effect altered the indictment, in substance, by substituting for the date of June 10th, the day alleged therein on which the crime was committed, the dates of June 1st and 3d, thereby charging the defendant with the commission of two separate crimes of like character, in a single count, whereas the indictment of the grand jury was predicated only upon the commission of a single offense'; the amendment was 'a substitution of two offenses for one which in effect was equivalent to adding a count to the indictment, and, hence, was prejudicial to the defendant's defense upon the merits of the case.' State v. Sing Lee, 94 N.J.L. 266, 110 A. 113, 115 (E. & A.1920).
And in keeping with that principle, the old Supreme Court declared in a later case that the time specification of an indictment is amendable as related to form only and not of the essence, and the State 'may prove any other date' of commission within the period prescribed by the statute of limitations, but where it appears, as it did appear in that case, that the State 'deliberately directed the testimony to...
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...indictment, as does also the provision of R.R. 3:4--5 that an amendment may not 'charge another or different offense.' State v. Grothmann, 13 N.J. 90, 98 A.2d 291 (1953). Pleading is never an end in itself. It is merely the vehicle for the merits of a controversy. The vehicle is sufficient ......
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