State v. Sullivan

Decision Date10 November 1954
Docket NumberNo. A--597,A--597
Citation33 N.J.Super. 138,109 A.2d 430
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. J. Minor SULLIVAN, III, Defendant-Appellant. . Appellate Division
CourtNew Jersey Superior Court — Appellate Division

Frank H. Lawton, First Asst. Pros., Trenton, for plaintiff-respondent (Mario H. Volpe, Mercer County Pros., Trenton, attorney).

William B. Hunter, Atlantic City, for defendant-appellant (Harry A. Walsh, Jersey City, and Frank Thompson, Jr., Trenton, of counsel; Thorn Lord, Trenton, attorney).


The opinion of the court was delivered by

SCHETTINO, J.S.C. (temporarily assigned).

Following an indictment for perjury which was sustained in State v. Sullivan, 25 N.J.Super. 484, 96 A.2d 680 (App.Div.1953), certification denied, 13 N.J. 289, 99 A.2d 450 (1953), certiorari denied 347 U.S. 903, 74 S.Ct. 428 (1954), defendant was indicted for false swearing under R.S. 2:157--4 (now N.J.S. 2A:131--4, N.J.S.A.) on the basis, we are told, of the same testimony with respect to which the first indictment was returned. Neither indictment has, as yet, been brought to trial. Defendant's motions to dismiss the second indictment and for a bill of particulars having been denied by the County Court, he applied for leave to appeal from the resulting order. Leave was granted only with respect to the refusal of a bill of particulars, and that is the subject now before us.

The indictment contains eight counts. Eath follows the same format. Each alleges that defendant testified under oath on a stated day in the trial of homicide charges against others who are named, quotes excerpts from the testimony, and concludes with a statement of the specific matters with respect to which the quoted testimony is charged to have been knowingly false. We gather that defendant is a physician. In general the testimony charged to be false consists of statements of defendant with respect to his observations of the men charged with murder and his opinions on the basis of those observations.

The application was made under R.R. 3:4--6 which provides in part:

'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. * * *'

This rule explicitly states the purpose of a bill of particulars to be 'to enable the defendant to prepare his defense,' and the basis to be that 'the indictment * * * is not sufficiently specific for that purpose. This standard is not the equivalent of the standard prescribed for the sufficiency of an indictment itself. An indictment must allege 'the essential facts constituting the offense charged.' This ancient rule is expressed in R.R. 3:4--3. That an indictment satisfies the stated rule is no barrier to a bill of particulars. State v. Engels, 32 N.J.Super. 1, 107 A.2d 674 (App.Div. 1954). Indeed, it is settled that an indictment deficient for want of a statement of the essential facts may not be saved by a bill of particulars, State v. Gibbs, 134 N.J.L. 366, 48 A.2d 300 (Sup.Ct.1946) and State v. Daly, 3 N.J.Super. 257, 66 A.2d 354 (App.Div.1949); and this is so because an indictment must allege facts sufficient to sustain a conviction, State v. Winne, 12 N.J. 152, 178, 96 A.2d 63 (1953), and because otherwise an accused might be brought to trial upon a charge not found by the grand jury or upon a charge different from the one which the grand jury intended. Linden Park Blood Horse Association v. State, 55 N.J.L. 557, 558, 27 A. 1091 (E. & A. 1893); State v. Schmid, 57 N.J.L. 625, 626, 31 A. 280 (Sup.Ct.1895).

There is authority that a bill of particulars may be ordered to protect against a subsequent prosecution for the same offense. See 5 A.L.R.2d 444. Such assurance in our State is afforded by the principles relating to the sufficiency of the indictment itself, State v. Winne, supra (12 N.J. at 178, 96 A.2d at 76, 77). Whether a need for such assurance is a proper basis for a bill of particulars in the light of the phrasing of R.R. 3:4--6, need not be considered since the indictment here is sufficiently explicit to preclude that hazard and we do not understand defendant to suggest otherwise.

As stated above, an indictment may allege the essential facts and yet leave a defendant in need of further information to enable him to Prepare his defense, State v. Davis, 6 N.J.Super. 162, 70 A.2d 761 (App.Div.1950). We underscore the word 'prepare', because it is the key to the special office of a bill of particulars. The ultimate objective is to assure the accused a decent opportunity to prepare in advance of the trial to meet the State's case. The difficulty lies in fixing the outer borders of the area within which the element of surprise may thus be eliminated. On the civil side, we have embraced a philosophy of discovery which may lay bare the ultimate evidence on both sides. Our practice in criminal matters is strikingly different. Cf. State v. Tune, 13 N.J. 203, 98 A.2d 881 (1953). Much can be and has been said on the merits of contending approaches to the problem, but we cannot go beyond the principles as they presently exist. Greenspan v. Slate, 22 N.J.Super. 344, 92 A.2d 47 (App.Div.1952), reversed on other grounds, 12 N.J. 426, 97 A.2d 390 (1953).

A defendant may not seek a statement of the evidence, as such, but a bill of particulars, otherwise warranted, may not be refused because evidence thereby will be revealed. We hesitate to attempt to express an invariable test, but suggest that, at least ordinarily, the State may be required to furnish a statement of the constituent events of the offense and the actors involved or concerned in those events, but may not be compelled to identify its witnesses or to reveal their expected testimony.

A convenient illustration is found in State v. Winne, 27 N.J.Super. 120, 98 A.2d 898 (Law Div.1953), affirmed 27 N.J.Super. 304, 99 A.2d 368 (App.Div.1953). The indictment there was for nonfeasance in the office of prosecutor. The indictment alleged that defendant had knowledge of certain criminal activities, and as a charge of knowledge as an essential ingredient of the indictment, the naked allegation of knowledge was held to be sufficient. State v. Winne, 12 N.J. 152, 96 A.2d 63 (1953). But to prepare the defense, defendant then sought a statement of the events, and actors therein, which the State contended to have imparted such knowledge to him. Defendant was held entitled to such information, for otherwise he could not fairly prepare to meet the proof at trial. But, we apprehend, defendant would not have been entitled to a specification of the witnesses who would be produced and the details of their testimony, albeit that the actors disclosed in the bill of particulars might be the same persons who would be called as witnesses by the State and the disclosure as to the events would, of necessity, reveal the testimony those witnesses would give at the trial. Whether the requirement of fairness may, in a given case, lead to disclosures beyond the area just suggested, need not be explored since we find nothing in the present case which would warrant a departure from what seems to be the ordinary rule.

To an extent, the State has informally revealed some of the information defendants seeks and suggests further that defendant must be aware of other matters. If defendant is entitled to a bill of particulars, such informal revelation or supposed knowledge would not defeat his application. Upon a post-conviction inquiry into a question of prejudice by reason of an erroneous denial of a bill of particulars, the state of defendant's personal knowledge may well be...

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11 cases
  • State v. Williamson
    • United States
    • New Jersey Superior Court — Appellate Division
    • February 16, 1959
    ... ... 717. Another test is projected in State v. Sullivan, 33 N.J.Super. 138, 141, 109 A.2d 430 (App.Div.1954), based upon the difference in function between the requirement that the indictment allege 'the essential facts constituting the offense charged,' R.R. 3:4--3, and that of a bill of particulars, i.e., 'to enable the defendant to prepare his ... ...
  • State v. Sullivan
    • United States
    • New Jersey Supreme Court
    • April 1, 1957
    ...903, 74 S.Ct. 428, 98 L.Ed. 1063 (1954). The false swearing indictment was likewise subjected to appellate treatment, 33 N.J.Super. 138, 109 A.2d 430 (App.Div.1954). To prove the charges made in the indictments, the State introduced transcripts of defendant's testimony at the first and seco......
  • State v. Straughan
    • United States
    • Louisiana Supreme Court
    • March 26, 1956
    ... ... State, 152 Fla. 242, 9 So.2d 807; People v. Flynn, 275 Ill. 366, 31 N.E.2d 591; Campfield v. State, 91 Ohio App. 74, 105 N.E.2d 661; State v. Kearns, Ohio Com.Pl., 126 N.E.2d 607; State v. Gibbs, 134 N.J.L. 366, 48 A.2d 300; State v. Daly, 3 N.J.Super. 247, 66 A.2d 354; State v. Sullivan, 33 N.J.Super. 138, 109 A.2d 430; Commonwealth v. Hershman, 171 Pa. Super. 134, 90 A.2d 314; State v. Jessup, 98 Utah 482, 100 P.2d 969; State v. Spencer, Utah, 117 P.2d 455; State v. Wong Sun, Mont., 133 P.2d 761; State v. Greer, 238 N.C. 325, 77 S.E.2d 917; Stanley v. State, 171 Tenn. 406, 104 ... ...
  • State v. LaPierre
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    ... ... See Franzoni v. Franzoni, 60 N.J.Super. 519, 522, 159 A.2d 452 (App.Div. 1960); State v. Sullivan, 24 N.J. 18, 45--46, 130 A.2d 610 (1957) (dissenting opinion). Such situations, however, are quite exceptional and the present case is not one of them. At any rate, fairness does not require retrials in every case in which a trial court failed to state the subsidiary findings at the time of ... ...
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