State v. Johnson

• Decision Date: 17 June 1918
• Docket Number: No. 13.,13.
• Citation: 104 A. 593
• Parties: STATE v. JOHNSON.
• Court: New Jersey Supreme Court

104 A. 593

STATE

v. JOHNSON.

No. 13.

Court of Errors and Appeals of New Jersey.

June 17, 1918.

(Syllabus by the Court.)

Swayze and Taylor, JJ., dissenting.

Error to Supreme Court.

Elwood Johnson was convicted of fraudulent conversion. His conviction was affirmed by the Supreme Court (90 N. J. Law, 21, 100 Atl. 242), and he brings error. Affirmed.

Halsted H. Wainwright, of Manasquan, for plaintiff in error.

Charles P. Sexton, Prosecutor of Pleas, of Long Branch, for the State.

PARKER, J. The writ of error in this cause was dismissed for failure to comply with the rules (103 Atl. 187), and later reinstated on application of plaintiff in error, to the end that any meritorious questions existing might be considered.

So far as relates to points treated in the opinion of the Supreme Court, we agree with the views expressed by that court and adopt them as our own. But counsel for plaintiff in error urges that there were two points raised before the Supreme Court which it did not decide, and relies on them for a reversal here. The opinion below expressly states that the other errors assigned were not argued or briefed and that the court considered them as abandoned. Such is the well-settled rule. And that an appellate court will ordinarily not consider points not raised in the court below is as well settled, except in cases of public policy or lack of jurisdiction over the subject-matter. Dodd v. Una, 40 N. J. Eq. 672, 713, 5 Atl. 155; State v. Shupe, 88 N. J. Law, 610, 97 Atl. 271; McMichael v. Horay, 90 N. J. Law, 142, 100 Atl. 205.

One of the points now raised does bear on the matter of jurisdiction, viz. the amendment of the indictment, which is based on section 166 of the Crimes Act, quoted in the opinion below. It is claimed that as originally presented the indictment charged the receiving of goods and chattels, and not money; and that the trial court undertook by amendment to insert a charge of receiving money, thus giving the indictment an effect that it did not originally possess. If this point is well taken, there should be a reversal, because the well-recognized rule is that under section 44 of the Criminal Procedure Act the court cannot by amendment make the indictment charge a crime when none is presented, or charge a crime different from that presented by the grand jury. State v. Flynn, 76 N. J. Law, 473, 477, 72 Atl. 296, and cases cited; State v. Unsworth, 85 N. J. Law, 237, 240, 88 Atl. 1097. And if it charged a crime different from that originally presented and could not be so amended, the trial court was without jurisdiction over this part of the subject-matter. We proceed therefore to examine the indictment and the amendment to ascertain whether the point made has actual merit.

The charge of the Indictment is that the defendant on, etc., at, etc., within the jurisdiction of the court, $2,547.54 or the goods and chattels of one A. C. before then feloniously, unlawfully, and fraudulently obtained, taken, and converted by one Charles Harvey, unlawfully and feloniously did receive and have, well knowing said moneys, goods, and chattels to have (been) feloniously, etc., taken and converted by said Charles Harvey, contrary to the form of the statute, etc. The amendment consisted simply or inserting the word "moneys" between the statement of the amount and the words "of the goods and chattels," so that it should read, at, etc., within the jurisdiction, etc., $2,547.54 of the moneys, goods and chattels of one A. C, etc., thus making it conform to the later language "well knowing said moneys, goods and...