State v. Russo

• Citation: 71 A.2d 142,6 N.J.Super. 250
• Decision Date: 01 February 1950
• Docket Number: No. A--54,A--54
• Parties: STATE v. RUSSO.
• Court: New Jersey Superior Court – Appellate Division

Page 250

6 N.J.Super. 250

71 A.2d 142

STATE v. RUSSO.

No. A--54.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 16, 1950.

Decided Feb. 1, 1950.

Donald G. Collester, County Prosecutor of Passaic County, Clifton, argued the cause for respondent.

Feder & Rinzler, Passaic, for and of counsel with defendant-appellant (Joseph A. Feder, Passaic, on the brief).

Before Judges JACOBS, DONGES and BIGELOW.

The opinion of the court was delivered by

DONGES, J.A.D.

This appeal comes before this court on a ruling entered by the Passaic County Court denying a motion to quash the indictment.

The defendant, Carmen Russo, was indicted on two counts by the Grand Jury of Passaic County charging that he violated the provisions of R.S. 2:176--4, N.J.S.A., which reads as follows: 'Every person becoming the lawful possessor of a pistol, revolver or other firearm of a size capable of being concealed upon the person, who shall sell, give or transfer the same to any other person without first notifying the police authorities, shall be guilty of a misdemeanor. This section shall not apply to wholesale or retail dealers or manufacturers who have complied with the provisions of this chapter.'

The indictment returned by the Grand Jury contains the following language: '* * * on the twenty-fifth day of November, one thousand nine hundred and forty-eight, in the City of Passaic, in the County of Passaic aforesaid, and within the jurisdiction of this Court, Carmen Russo, having theretofore become, and then and there being, the lawful possessor of a certain firearm, to wit, a revolver, of a size capable of being concealed upon the person, willfully, knowingly and unlawfully did sell and transfer the same to one John Ianacone, without having first notified the police authorities of the City of Passaic aforesaid, or any sergeant, lieutenant or captain or the deputy chief or the chief, or any other officer or member, of whatever rank or status, of the police department of said City, or the superintendent of the State Police of New Jersey, or any other officer or any member, of whatever class or rank of said State Police, or any officer or member, of whatever station, of the police department of any of the municipalities within this State, or elsewhere, of such intended sale and transfer, contrary to the provisions of R.S. 2:176--4 * * *.'

The second count is in identical language, except it charges that defendant 'did give and transfer' the revolver to Ianacone, in place of 'did sell and transfer', as charged in the first count.

The court below denied defendant's motion to quash the indictment.

The defendant contends that the indictment lacks certainty, clearness and particularity and further that the statute upon which the indictment is based is indefinite, uncertain and vague.

It is, of course, necessary for an indictment to contain a description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, in order to identify the accusation, so that the accused may prepare his defense and so that he may be able to plead autrefois convict or autrefois acquit in bar of any subsequent proceedings. State v. Ellenstein, 121 N.J.L. 304, 2 A.2d 454 (Sup.Ct.1938); State...