State v. Grothmann

• Decision Date: 02 January 1953
• Docket Number: No. A--764,A--764
• Citation: 24 N.J.Super. 190,93 A.2d 605
• Parties: STATE v. GROTHMANN.
• Court: New Jersey Superior Court — Appellate Division

Page 190

24 N.J.Super. 190

93 A.2d 605

STATE v. GROTHMANN.

No. A--764.

Superior Court of New Jersey Appellate Division.

Argued Dec. 8, 1952.

Decided Jan. 2, 1953.

Louis Winer, Morristown, for appellant.

John D. Collins, Morris County Prosecutor, Morristown, for respondent.

Before Judges McGEEHAN, BIGELOW and JAYNE.

The opinion of the court was delivered by

JAYNE, J.A.D.

On January 18, 1952 the grand jury of the County of Morris presented to the court two indictments against the defendant with which we are presently concerned designated as Nos. 47 and 48. Indictment No. 47 in the first count alleged that the defendant on November 1, 1950 in the Town of Boonton did induce a female child therein named of the age of 12 years to submit to the doing of an act which would tend to debauch the child and to impair her morals by placing his hand under her clothing and upon the private parts of her body contrary to the provisions of N.J.S. 2A:96--3, N.J.S.A. The second count charged the defendant with the commission on the same date of an assault and battery upon the child. Indictment No. 48 alleged in the first count the commission on the same date of the same immoral offense by the defendant with another female child therein named of the age of nine years. There was in this indictment also an accusation of assault and battery. At the inception of the trial the citation in the indictments of the statute relating to the alleged debauching of the child was changed without objection to indicate R.S. 2:117--6.1, N.J.S.A., which was the statute in effect at the time of the alleged commission of that offense. Vide, Rule 2:4--11(a).

At the trial the testimony of the two children disclosed without objection the recurrent commission by the defendant of such unlawful practices at intervals over a period of the two preceding years. Consequentially at the conclusion of the introduction of the evidence on behalf of the State and in pursuance of the application of the county prosecutor, indictment No. 47 was amended to allege the occurrence of the offense on a date between April 1, 1951 and May 8, 1951, and incidentally to change the statement of the age of the child to ten years. Indictment No. 48 was also amended to place the commission of the offense therein alleged on a date between November 1, 1950 and May 8, 1951. Counsel for the defendant interposed timely objections to the allowance of those amendments.

Ultimately, the counts charging the defendant with assault and battery were dismissed and the jury found the defendant guilty on the first counts of indictments No. 47 and No. 48. The defendant was sentenced to confinement in the State Prison for a minimum term of one year and a maximum term of one and one-half years on each indictment, with the direction that the sentences be served concurrently.

In the prosecution of the present appeal counsel for the defendant invites our attention to: (1) the allowance of the amendments of the indictments, (2) a feature of the court's charge to the jury, (3) the omission to charge a request, and (4) the alleged discordance between the verdict and the weight of the evidence.

In approaching the consideration of the allowance of the amendments it is of some precursory significance to notice that no objection whatever was interposed to restrain the infant witnesses during their interrogation from freely disclosing the many unlawful indulgences of the defendant over a relatively lengthy period, without restriction to the date specified in the indictments. The cross-examination was correspondingly comprehensive.

It must be recognized that the date of the commission of the particular misdemeanor alleged in the indictments (R.S. 2:117--6.1, N.J.S.A.), except it be comprehended by the statute of limitations, is formal and not a legal and essential constituent of the offense. State v. Shapiro, 89 N.J.L. 319, 98 A. 437 (E. & A.1916); State v. Yanetti, 101 N.J.L. 85, 127 A. 183 (E. & A.1925); State v. Butler, 147 A. 496, 7 N.J.Misc. 868 (Sup.Ct.1929), reversed on other grounds 107 N.J.L. 91, 150 A. 394 (E. & A.1930). He indictments therefore were not insufficient in that they originally stated the time imperfectly. R.S. 2:188--5, N.J.S.A.; Rule 2:4--13.

It is also to be observed that as amended the indictments alleged the commission of the offense 'on a date between * * *' Thus, neither indictment charged the occurrence of more than one offense. Contrast, State v. Sing Lee, 94 N.J.L. 266, 110 A. 113 (E. & A.1920); State v. Brown, 103 N.J.L. 519, 138 A. 370 (Sup.Ct.1927).

Additionally, the trial judge commented upon the amendments in his charge to the jury and expressly informed the jurors 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.' It also appears that the amendments were reduced to writing, comprising an exhibit in evidence to which the attention of the jury was specifically directed.

While counsel for the defendant argumentively resisted the motion to amend the indictments, it is not apparent that any request for either a mistrial or a reasonable recess in the course of the trial was made and denied.

It is not evidence that the defendant substantial rights were prejudicially affected by an error in the allowance of the amendments.

Our consideration turns next to those alleged inaccuracies in the diction of the judge's charge to the jury. Parenthetically it may be said that the excerpts taken from the charge presently to be reproduced have some relevancy also to the point previously discussed.

The clauses of the charge subjected to criticism are:

'* * * your sole duty is to determine whether a crime Of the nature complained of in the indictment occurred on that day.

In other words, in one sentence, you will take these indictments and their amendments with you to the jury room and you are to determine whether A crime was committed in so far as each of these three girls is concerned on a date within the period covered by the amended indictments * * *.' (Italic indicates root of criticism.)

Initially it is discovered that in the deliverance of the charge the trial judge read to the jury in full the section of the statute three times.

It is...