State v. Lefante

• Decision Date: 08 June 1953
• Docket Number: No. A--136,A--136
• Parties: STATE v. LEFANTE.
• Court: New Jersey Supreme Court

Page 505

12 N.J. 505

97 A.2d 472

STATE v. LEFANTE.

No. A--136.

Supreme Court of New Jersey.

Argued May 18, 1953.

Decided June 8, 1953.

Raymond J. Cuddy, Bayonne, for appellant (Frederick T. Law, County Pros., Kearny).

Abraham J. Slurzberg, Jersey City, for respondent (J. Arnold Bressler, Bayonne, attorney).

The opinion of the court was delivered by

VANDERBILT, C.J.

The defendant was convicted on both counts of each of three indictments, all of which were identical except in alleging the commission of the crimes on different days over a period of four months. The first count of each indictment charged that the defendant 'did carnally abuse a girl (naming her) aged nine years, contrary to the provisions of R.S. 2:163--1 (N.J.S.A.).' The statute reads as follows:

'Any person who shall have carnal knowledge of a woman forcibly against her will, or shall aid, abet, counsel, hire, cause or procure any person to commit such offense, or Who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child under the age of twelve years, with or without her consent, shall be guilty of a high misdemeanor, and punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor not exceeding thirty years, or both; or who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child over the age of twelve years and under the age of sixteen years, with or without her consent, shall be guilty of a high misdemeanor, and punished by a fine not exceeding two thousand dollars, or imprisonment at hard labor not exceeding fifteen years, or both.' (Emphasis added.)

This statute, with amendments not pertinent here, is now found in N.J.S. 2A:138--1, N.J.S.A.

The second count of each indictment charged that the defendant 'did commit an assault upon' his victim (naming her) 'aged nine years, contrary to the provisions of R.S. 2:110--2 (N.J.S.A.).' This statute reads:

'Any person who shall commit an assault with intent to kill, or to commit burglary, rape, robbery or sodomy, or to carnally abuse a female under the age of sixteen, with or without her consent, shall be guilty of a high misdemeanor, and punished by a fine not exceeding three thousand dollars or by imprisonment at hard labor not exceeding twelve years, or both.'

This statute, with amendments immaterial here, is now N.J.S. 2A:90--2, N.J.S.A.

Prior to the trial the defendant moved to dismiss the indictments on the ground that the indictments failed to charge an offense under R.S. 2:163--1, N.J.S.A., in that they did not contain an allegation in the language of the statute that the defendant was 16 years of age or over. In fact he was 53 years old. His motion was repeated at the close of the State's case and again at the conclusion of the trial, being denied each time. The defendant appealed his conviction to the Appellate Division of the Superior Court, which court reversed the judgment below, first, on the ground that the first count of each of the indictments failed to allege the age of the defendant, and secondly, because the second count of each indictment failed to allege an intent to commit a crime or to name the intended crime, 23 N.J.Super. 511, 93 A.2d 220 (1952).

This appeal by the state raises two questions, one of criminal law and the other of pleading.

The primary purpose of an indictment is to inform the defendant of the nature of the offense charged against him, so that he may adequately prepare his defense, while a second function is to serve as a shield from another indictment for the same offense. State v. Winne, 12 N.J. 152, 178, 96 A.2d 63 (1953). If the defendant should be reindicted, he may use the first indictment and his acquittal or conviction thereon to avoid the threat of double jeopardy by virtue both of our Constitution. Article I, par. 11, and the common law. State v. Di Giosia, 3 N.J. 413, 70 A.2d 756 (1950). See also 4 Barron, Federal Practice and Procedure (1951), sec. 1914.

The sufficiency of an indictment is to be determined in the light of the pertinent rules of court and judicial decisions. Rule 2:4--11, dealing with the nature and contents of an indictment, reads, so far as it is pertinent here, as follows:

'The indictment or accusation shall be a written statement of the essential facts constituting the offense charged. * * * Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state for each count the official or customary citation of the statute or statutes which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.'

The apposite rules on appeal are Rules 1:2--19(a) and (b)--(a) dealing with matters advantageous to a defendant, while (b) treats of correlative instances of the relaxation of strict rules in favor of the State:

'(a) In criminal causes, errors apparent on the face of the judgment record shall be reviewable as heretofore. Error in the admission or rejection of testimony, or in the charge of the court, or in the refusal to charge as requested by the defendant, or in the denial by the court of any matter resting in discretion, or in any other ruling or order made during the course of the trial, shall be cause for reversal if specific objection thereto was made and it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury. The court may, however, notice plain errors affecting substantial rights of the defendant, although they were not brought to the attention of the trial court. If it shall appear, after challenge interposed by the defendant in the appellate court, that the verdict was against the weight of the evidence, the judgment shall be reversed and a new trial ordered. A verdict of a jury shall not be set aside as against the weight of the evidence unless it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion.

'(b) No judgment given upon any indictment shall be reversed for any imperfection, omission, defect or lack of form, or for any error except such as shall have prejudiced the defendant in maintaining his defense upon the merits.'

Together these rules bespeak the determination of the court to put an end to the determination of criminal proceedings on the technicalities that so often characterized criminal proceedings at common law and that tended to bring the law and the administration of justice into disrepute. Here the defendant is clearly apprised of the fact that he is accused of carnal abuse of a nine-year-old girl under R.S. 2:163--1, N.J.S.A., supra. It would seem that the defendant is told all he need to know as to the nature of the charge against him. The prosecutor and the trial judge so believed even in the face of the defendant's objection that the indictments were defective for failing to state that the 53-year-old defendant was 16 years of age or over, for there was no suggestion by them of an amendment of the indictment, which would have been proper under Rule 2:4--13. Nor did the defendant demand a bill of particulars under Rule 2:4--14:

'Bills of particulars shall be ordered by the court, when the indictment or accusation is not sufficiently specific to enable the defendant to prepare his defense. * * * Further particulars may be ordered in the discretion of the court, when a demand therefor is promptly made.'

Nevertheless, it was held by the Appellate Division of the Superior Court and it is urged here by the defendant that inasmuch as the statute under which the defendant was indicted specifies that the defendant must be of the age of 16 or over, the indictment is fatally defective for failing so to allege.

To resolve this issue it becomes necessary to examine, in the first place, the decisions in this State. In every case to which we are referred by the defendant the expressions on the subject are clearly dicta and conceded to be so by the defendant both in his brief and at the oral argument. Only one of these cases was in the court of last resort. Reviewing these cases chronologically, Scarpa v. State, 20 N.J.L.J. 113, 114 (Sup.Ct.1897), dealt merely with the insufficiency of a verdict which did not state that the defendant was 16 years of age or over. The form of the indictment was not before the court. In Farrell v. State, 54 N.J.L. 416, 420, 24 A. 723, 725 (Sup.Ct.1892), where the indictment alleged the defendant's age, the court said: 'The material facts descriptive of the statutory crime are that the man is of the age of 16 years, that the girl is under the age of 16 years, and that he has carnally abused her. An indictment which sets out these facts charges the offense at which the statute was aimed.' In State v. Jackson, 65 N.J.L. 105, 106, 46 A. 764 (Sup.Ct.1900), and likewise in State v. Cannon, 72 N.J.L. 46, 47, 60 A. 177 (Sup.Ct.1905), the indictment alleged that the defendants were over the age of 16 years. In State v. Pitman, 119 A. 438, 439 (Sup.Ct.1922), where the indictment alleged the defendant's age, the court remarked that the 'age of the prosecutrix and the defendant is the essence of the crime alleged.' In State v. Ferris, 99 N.J.L. 325, 123 A. 874, 875, (Sup.Ct.1923), the indictment charged common-law rape, not statutory rape. The trial judge submitted the case to the jury as if the indictment were under the statute. On review the Supreme Court said, 'the fundamental error * * * is that the charge of the court permitted the jury to convict the defendant of...