State v. Torrance

• Decision Date: 21 September 1956
• Docket Number: Nos. A--357,A--362,s. A--357
• Citation: 41 N.J.Super. 445,125 A.2d 403
• Parties: The STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. William R. TORRANCE, Defendant-Appellant and Cross-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 445

41 N.J.Super. 445

125 A.2d 403

The STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. William R. TORRANCE, Defendant-Appellant and Cross-Respondent.

Nos. A--357, A--362.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 5, 1956.

Decided Sept. 21, 1956.

William W. Wimmer, N. Arlington, argued the cause for defendant-appellant-respondent.

David M. Satz, Jr., Trenton, argued the cause for plaintiff-respondent-appellant (Grover C. Richman, Jr., Atty. Gen., attorney).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

Cross-appeals, here consolidated, were taken from an order of the Superior Court holding the indictment to be duplicitous in that it combined several offenses in a single count, but denying the defendant's motion to dismiss and granting leave to the State to amend in order to remedy the defect.

The defendant, William R. Torrance, was indicted by the Hudson County grand jury alleging a violation of N.J.S. 2A:111--1, N.J.S.A. formerly R.S. 2:134--1, which provides as follows 'Any person who, knowingly or designedly, with intent to cheat or defraud any other person, obtains any money, property, security, gain, benefit, advantage or other thing of value by means of false promises, statements, representations, tokens, writings or pretenses, is guilty of a misdemeanor.'

The indictment arose out of an investigation conducted by the Attorney General concerning certain alleged 'no show' practices in the office of the Hudson County Superintendent of Elections. The expression 'no show' is used to describe a situation where a public employee collects his pay check, but fails to show up for work.

The indictment alleges the offense in a single count, the pertinent parts of which are as follows:

'* * * William R. Torrance * * * having been duly appointed as a temporary clerk by the Superintendent of Elections * * * and having accepted such appointment, was duly assigned to duty as an investigator * * * it was his duty to personally make * * * investigations * * * and record in writing upon forms supplied by the office * * * pertinent facts, data and information * * * and to deliver such completed forms to the Superintendent of Elections * * * For the performance of the afforesaid duties * * * Torrance received a salary from the County of Hudson * * * paid to him in semi-monthly installments * * *.

'* * * Torrance * * * knowingly, designedly, willfully and with intent to cheat and defraud, knowingly, designedly, and willfully, did falsely represent and pretend * * * that he * * * did perform all the duties aforesaid enjoined upon him, the said William R. Torrance, between on or about August 1, 1952 and September 30, 1952 * * * whereas in truth * * * Torrance did not perform the duties aforesaid enjoined upon him * * *, and that by means of said false representations and pretenses * * * did obtain * * * money to the amount and value of $466.64, with intent to cheat and defraud * * *.'

The trial court denied the defendant's motion to dismiss, which motion urged that: (1) the indictment does not state facts sufficient to constitute an offense; (2) the indictment does not adequately inform the defendant of the nature and cause of the accusation; and (3) the indictment is so vague, uncertain, indefinite and lacking in adequate specifications as to afford to the defendant no means of preparing his defense. In considering the motion, the trial court did not rule on the separate grounds urged by the defendant, but did find the charge to be duplicitous in that there were four semi-monthly payments of money and that, therefore, several offenses were improperly included in the one count of the indictment. The order entered directed that the indictment be amended and that the State proceed upon one selected offense only.

The appeal of the State is founded on the theory that the indictment charged only one offense, each of the payments flowing from one continuing misrepresentation by the defendant.

R.R. 3:4--3 provides that an indictment must allege 'the essential facts constituting the offense charged.' State v. Solomon, 97 N.J.L. 252, 117 A. 260 (E. & A.1921); State v. Lombardo, 20 N.J.Super. 317, 90 A.2d 39 (App.Div.1952); State v. Algor, 26 N.J.Super. 527, 98 A.2d 340 (App.Div.1953). In State v. Engels, 32 N.J.Super. 1, 6, 107 A.2d 674, 676 (App.Div.1954), it was stated:

'Gradually our courts have recognized that the nicety of language, the former precautious tautology and prolixity which had characterized indictments in the environment existing in the days of the early common law could with substituted safeguards be disregarded in the social experiences of the modern day without any infringement of the right of the accused adequately to be informed of 'the nature and cause of the accusation.' Vide, State v. Lefante, 12 N.J. 505, 97 A.2d 472 (1953).

'Assuredly, it is still absolutely imperative that an indictment allege every essential element of the crime sought to be charged. (Cases cited) Positive also it is that the omission of the allegation of an essential element of the crime cannot be supplied by inference or implication. (Cases cited)'

It is settled law that the refusal of the trial court to quash an indictment rests solely in that court's sound discretion and will not be reversed on appeal unless manifest error is shown. Proctor v. State, 55 N.J.L. 472, 26 A. 804 (Sup.Ct.1893); State v. Bove, 98 N.J.L. 350, 116 A. 766 (Sup.Ct.1922), affirmed 98 N.J.L. 576, 119 A. 926 (E. & A.1923); State v. Zeek, 120 N.J.L. 322, 199 A. 713 (Sup.Ct.1938), affirmed 121 N.J.L. 584, 3 A.2d 574 (E. & A.1939); State v. Weleck, 10 N.J. 355, 91 A.2d 751 (1952).

In State v. Winne, 12 N.J. 152, at page 181, 96 A.2d 63, at page 78 (1953), Chief Justice Vanderbilt said:

'The power to quash an indictment rests in the sound discretion of the trial judge, but this discretion should not be exercised 'except on the plainest ground.' State v. Ellenstein, 121 N.J.L. 304, 325, 2 A.2d 454, 465 (Sup.Ct.1938), or on 'the clearest and plainest ground,' as it was put in State v. Davidson, 116 N.J.L. 325, 328, 184 A. 330, 332 (Sup.Ct.1936), or unless the indictment is 'palpably defective,' State v. Russo, 6 N.J.Super. 250, 254, 71 A.2d 142 (App.Div.1950). * * * Our courts have repeatedly held that 'discretion ought not to be exercised in a case like this where injustice may be done thereby to the state and where the refusal to exercise it deprives the defendants of no substantial rights.' State v. Lehigh Valley Railroad Company, 90 N.J.L. 372, 376, 103 A. 685, 687 (Sup.Ct.1917).'

The power of an appellate court to exercise its judgment in substitution of that of the trial court has been reviewed in State v. Weleck, supra. There, the Supreme Court considered an appeal by the State from the granting of a motion to quash the indictments against the defendant. While the court reversed and remanded the cause for trial, it pertinently had the following to say (10 N.J. 355, at page 364, 91 A.2d at page 755):

'* * * Since the exercise of discretionary authority will not be disturbed on appeal or review unless it has been clearly abused, In re Longo, 124 N.J.L. 176, 11 A.2d 33 (E. & A.1949); State v. Collins, 2 N.J. 406, 67 A.2d 158 (1949); State v. Bunk, supra, 4 N.J. 482, 73 A.2d 245 (1950), the ultimate question on this appeal is whether the trial court abused its discretion in granting the defendant's motion to dismiss the indictments.'

The material elements charged in the indictment are the following: (1) that the defendant knowingly accepted employment under a public official and was assigned duties, which he in fact pretended and falsely represented that he performed; (2) that during the time of his employment, he did not perform the duties enjoined upon him; (3) that he did receive and obtain from the Superintendent of Elections and the County of Hudson public moneys for the payment of which they relied upon his false representations and pretenses; and (4) that as a direct consequence the defendant received public moneys not due to him. State v. Vanderbilt, 27 N.J.L. 328 (Sup.Ct.1859); Roper v. State, 58 N.J.L. 420, 33 A. 969 (Sup.Ct.1896); State v. Kaufman, 31 N.J.Super. 225, 106 A.2d 333 (App.Div.1954), reversed on other grounds 18 N.J. 75, 112 A.2d 721 (1955).

It is required of every indictment that it shall give the accused reasonable notice of the act or acts against which he is called upon to defend himself. Therefore, it is required that it contain some statement of facts and circumstances to give him this knowledge, and he has the right to have such facts and circumstances set out in the indictment. Every constituent element of the crime...