State v. Simon, 3.

• Decision Date: 11 April 1935
• Docket Number: No. 3.,3.
• Parties: STATE v. SIMON.
• Court: New Jersey Supreme Court

178 A. 192

STATE

v. SIMON.

No. 3.

Supreme Court of New Jersey.

April 11, 1935.

Syllabus by the Court.

1. Indictment in three counts, under section 124 of the Crimes Act (2 Comp. St. 1910, p. 1786) as amended by P. L. 1919, p. 257 (Comp. St. Supp. 1924, § 52—124), held not duplicitous.

2. Power of trial court to allow a continuance is discretionary. In this case, held, the discretion was not abused.

3. Appointment by trial court of a former prosecutor of the pleas to represent the defendant in the absence of retained counsel held warranted under the circumstances of the case.

4. In an indictment under section 124 of the Crimes Act, as amended, the date averred in the indictment is not of the essence of the offense, and any date within the period of limitation may be provided.

Error to Court of Quarter Sessions, Union County.

Max L. Simon was convicted of causing a burning and of counseling and procuring a burning, and he brings error.

Affirmed.

Argued January term, 1935, before BROGAN, C. J., and PARKER and BODINE, JJ.

Harry H. Weinberger of Newark, for plaintiff in error.

Abe J. David, Prosecutor of the Pleas, and Thomas P. Hueston, Asst. Prosecutor, both of Elizabeth, for the State.

PARKER, Justice.

The indictment was in three counts, all based on section 124 of the Crimes Act (2 Comp. St. 1910, p. 1786), as amended by P. L. 1919, p. 257 (Comp. St. Supp. 1924, § 52— 124). Three defendants were charged jointly; Max L. Simon, John Chirichello, and Vito Ruzzito. The last was dead at the time of the trial, and Chirichello was severed and testified for the state. The trial proceeded as against Simon, who was acquitted by direction of the court without objection by the prosecutor, on the first count, and convicted on the second and third counts. He bring; this writ of error.

The statute above cited, so far as relevant, reads as follows: "Any person who shall willfully or maliciously burn, or cause to be burned, or aid, counsel, procure or con sent to the burning of any * * * building, * * * or any shop, storehouse, warehouse, malt-house, mill, or other building, whether it be his own or that of another * * * shall be guilty of a high misdemeanor."

The first count charged the willful and malicious burning of a printing shop and building occupied by Simon as lessee and owned by the Central Railroad Company. The second charged that the three defendants caused to be burned a building of the Central Railroad Company leased by Simon. The third count charged that they did willfully and maliciously aid and counsel and procure and consent to the burning of the same building leased by Simon. All three counts laid October 17, 1931, as the date. The first is not before us, but will be discussed incidentally hereafter. As to the other two, the evidence tended to show that, while the fire actually occurred October 17, Simon had been planning to burn the building, where he had a newspaper plant, as early as July, and conferred with Chirichello, who was to set the fire, as late as "a couple of days after Columbus Day," or October 14. The indictment was found on October 10, 1933, and hence just within the two years. As to October 14, the evidence was sufficient to present to the jury the issue of "causing" and "aiding, counselling, procuring and consenting" to a burning thereafter. The trial judge charged that the precise date was not material, and that it was unnecessary to proving the causing, or the counseling, etc., as of October 17, if the actual time was within the two years' limitation. This is challenged in several aspects, and will be dealt with in its proper place.

The case comes up by the usual double track route, and the assignments of error and specifications for reversal are in Nos. 56 and 59, respectively, the extra three specifications going to weight of evidence. The argument is arranged under six, or perhaps seven, general points. The last made in the brief may well be considered first, viz., refusal to quash the indictment. It is argued that the counts are duplicitous in that a printing shop is not a building. This seems frivolous. "Shops" are classified as buildings in the very language of the statute. Again, that count 1 speaks of "occupation" and the other two of "leasing." It should be enough to say that, even conceding inconsistency, each count stands by itself, and in any event count 1 is out of the case. The argument is wholly unsubstantial. The same grounds were urged on motion to direct acquittal, and are equally untenable for the purpose of that motion. We see nothing whatever in the point.

The next point to be considered is the first one made in the 97-page brief for plaintiff in error, viz., that the trial court erred in refusing to grant a continuance because of the absence of Mr. Weinberger, defendant's counsel, at a criminal trial in the United States District Court. Plaintiff in error, conceding that the matter of continuance is in general discretionary, nevertheless argues that the court abused that discretion to the prejudice of the defendant Simon. The clerk's minutes show that the arraignment was on October 20, 1933, and trial set for November 6. It was evidently postponed, for on January 22, 1934, there is a minute of further postponement to February 13. No trial was had on that date. On April 3, on motion of attorney for defendant, there was a further adjournment until May 14, in view of defendant's affidavit of absent witnesses. On May 12, 1934 (a Saturday), Mr. Weinberger swore to an affidavit that since Tuesday, the 8th, he had been in the federal court, as above stated, and that only he was familiar with both cases. On Monday morning, the 14th, a subordinate in Mr. Weinberger's office appeared in court, presented the affidavit, and asked for a further adjournment. The court pointed out that the case had been set specially and peremptorily. The defendant himself was not then in court, but appeared promptly after a threat of forfeited bail and a bench warrant. The court asked the subordinate, Mr. Budd, what other lawyers there were in the Minturn & Weinberger office, and was told of former Justice Minturn and Mr. Halpern, but that "they are not available and know nothing about the case." Mr. Budd begged off from trying the case; the court appointed former prosecutor Walsh as counsel for the defendant and ordered on the trial. Mr. Walsh obtained an adjournment until the next day, when the jury was sworn and the trial proceeded; Mr. Halpern of the Weinberger office being present and participating throughout. There was no suggestion that we can discover, that Mr. Walsh be relieved of duty because of Halpern's arrival. The case was fully presented, and we observe no claim that any material testimony for defendant was lost, nor can we see that he suffered manifest wrong and injury. It is said that the court erred in three respects, but we can find only two specified. The first is that it was essential that defendant have the personal service of Mr. Weinberger. The second is the appointment of Mr. Walsh.

As to the first, it should have been quite obvious to Mr. Weinberger and his associates that when he began the trial in the federal court on Tuesday there was danger that it might last over the following Monday, which as they all knew, or were bound to know, was the date set for the Simon case. But nothing at all seems to have been done until Saturday, when the Weinberger affidavit was made. It states that he had his office communicate with the prosecutor's office, but no date is given nor does the reply appear. All this time there were three other lawyers attached to Mr. Weinberger's office, two of whom at least could have prepared and tiled the case....