State v. Sing Lee

Decision Date09 April 1920
Citation110 A. 113
CourtNew Jersey Supreme Court

Black and Williams, JJ., dissenting.

Error to Supreme Court.

Sing Lee was convicted of carnal abuse, and, the Supreme Court having affirmed the conviction on strict writ of error, defendant brings error. Reversed.

Abner Kalisch and Isidor Kalisch, both of Newark, for plaintiff in error.

J. H. Harrison, Prosecutor of the Pleas, and John A. Bernhard, Asst. Prosecutor of the Pleas, both of Newark, for the State.

PER CURIAM. The plaintiff in error was convicted in the Essex county quarter sessions of abuse. On a strict writ of error sued out of the Supreme Court, that tribunal affirmed the conviction and the judgment rendered thereon. The record is now before us for review.

The indictment on which the conviction and judgment are founded contained two counts. The first count charged that the defendant did on the 10th day of June, 1918, commit an assault and battery upon Jane McDonough. This count was eliminated by the trial judge from the jury's consideration, thereby leaving for its determination only the second count, which originally charged that on the 10th day of June, 1918, the defendant "did unlawfully and carnally abuse the said Jane," etc.

After the state had practically closed its case reserving the right to call a physician, counsel of the state recalled the prosecutrix and upon her further examination moved to amend the indictment so as to charge the offense to have been committed on June 1st, and June 3d, instead of June 10th. This was duly objected to by counsel of defendant. A colloquy between court and counsel ensued, and only such parts of the colloquy as tend to illustrate the legal question mooted are here set forth:

"The Court: The indictment now relates to the 1st and 10th. You desire to amend this indictment so as to show the alleged offense to have been the 1st and 3d.

"Mr. Bernhard: Yes, sir; a continuous offense.

"Mr. Kalisch: I object to that; that is not the indictment found by the grand jury. * * *

"The Court: Being of the opinion that this amendment is proper under the circumstances, and counsel for defendant waiving his claim to surprise, therefore Mr. Kalisch desires no further time to prepare his case. Therefore, that being so, your motion is overruled and you may have an exception.

"Mr. Kalisch: The record shows that amendment was made after the state had closed its case and after a motion was made for dismissal.

"The Court: And also after the court had reopened the case, recalling the complaining witness for further examination. I understand it now that the offense is charged to have been committed on the 1st and 3d of June.

"Mr. Bernhard: Yes, sir."

It is quite obvious that the trial judge allowed the amendment applied for upon the fallacious conception that the offense was a continuing one. It is equally clear that the offense charged in the present case bears no analogy to that class of offenses which in their nature are continuous, such as disorderly houses, public nuisances, open and notorious lewdness, etc., and in which instances any number of days, within two years of the finding of the indictment, may be alleged on which the offense was committed. But no such case is before us.

The effect of the judicial action of the trial judge was to amend the indictment so as to include within the scope of its second count an allegation of the commission of offense by the defendant, of which he was not indicted by the grand jury.

At common law an indictment could not be amended by the court without the concurrence of the grand inquest by whom it was presented. The underlying reason for this is that, an indictment being a finding of a grand jury upon oath, it cannot be amended without its consent. And the power to amend was confined strictly to matters of form only. 1 Chitty on Cr. Law, 244. This learned author, at same page, says:

"That it is the common practice for the grand jury to consent, at the time they are sworn, that the court shall amend matters, altering no matters of substance; and mere informalities may, therefore, be amended by the court before the commencement of the trial.'

This practice has been continued down to the present time, with this change, that instead of obtaining the consent of the grand jury at the time of its being sworn, to amend matters of form, the consent of the grand jury for that purpose is obtained when that body comes into open court to present the indictments found, and the clerk of the court makes this statement:

"These bills you find as true bills, and are content that the court amend them in form and false English, not altering the substance of the same."

The several sections of the Criminal Procedure Act, under the caption, "Indictments and Proceedings thereon," 2 Comp. Stats. p. 1830, etc., deal with the topic under discussion, and are to the same effect.

In view of the constitutional declaration that "no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury," it is manifest that any statute tending to abridge this...

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16 cases
  • State v. Stefanelli
    • United States
    • New Jersey Supreme Court
    • January 10, 1979
    ...604-607, 100 A.2d 754 (1953); State v. Kuske, 109 N.J.Super. 575, 583-586, 264 A.2d 227 (App.Div.1970); compare State v. Sing Lee, 94 N.J.L. 266, 110 A. 113 (E. & A. 1920) and State v. Faulks,97 N.J.L. 408, 117 A. 476 (Sup.Ct.1922). Generally, "time is not of the essence of the offense of c......
  • State v. Witte
    • United States
    • New Jersey Supreme Court
    • November 23, 1953 the grand jury. Compare State v. Grothmann, 13 N.J. 90, 98 A.2d 291 (1953). The principle is exemplified in State v. Sing Lee, 94 N.J.L. 266, 110 A. 113 (E. & A.1920). The keeping of a disorderly house is in its very nature a continuing offense, and by the same token the knowing and wilf......
  • State v. Friedman.
    • United States
    • New Jersey Supreme Court
    • April 18, 1947 the particular violations laid to the accused in the indictment, and made the subject of specific proof. The case of State v. Sing Lee, 94 N.J.L. 266, 110 A. 113, is not analogous. There, an indictment alleging carnal abuse on a given day was amended to charge the like offense on each of......
  • State v. Wolden
    • United States
    • New Jersey Superior Court — Appellate Division
    • October 6, 1977 concludes, then defendant may not be convicted thereon. State v. Grothmann, supra, 13 N.J. at 95, 98 A.2d 291; State v. Sing Lee, 94 N.J.L. 266, 269, 110 A. 113 (E.&A.1920); Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Critchley, 353 F......
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