State v. White

• Decision Date: 18 October 1926
• Docket Number: No. 65.,65.
• Citation: 134 A. 746
• Parties: STATE v. WHITE.
• Court: New Jersey Supreme Court

134 A. 746

STATE

v. WHITE.

No. 65.

Court of Errors and Appeals of New Jersey.

Oct. 18, 1926.

(Syllabus by the Court.)

Kays, J., dissenting.

Appeal from Supreme Court.

William White was convicted of carnal abuse; the judgment was affirmed (130 A. 470), and he appeals. Affirmed.

Stein & Stein, of Paterson, for appellant.

J. W. DeYoe, of Paterson, for the State.

LLOXD, J. The appeal in this case is from a judgment of the Supreme Court (130 A. 470), affirming a judgment of the court of oyer and terminer of Passaic county, in which latter tribunal the appellant was, on a plea of non vult, sentenced to a term of not more than 30 years nor less than 20 years' imprisonment in the state prison. The indictment of the appellant charged the carnal abuse by him of a "woman child under the age of 16 years, to wit, of the age of 11 years," he being then "above the age of 16 years, to wit, of the age of 25 years." To this indictment he pleaded non vult, and was at first sentenced to a term not exceeding 7 years nor less than 4 years. In the afternoon of the same day the court, evidently discovering the more serious nature of the offense, resentenced the defendant to not more than 30 years nor less than 20 years as above stated. It was contended in the Supreme Court and is contended again in this court that the indictment was insufficient to charge the graver offense, and also that the court, having sentenced to the lighter term, was powerless to modify the sentence at a later hour of the same day.

We agree with the Supreme Court that the indictment in this case sufficiently charged the offense of carnal abuse of a girl under 12 years of age as set forth in section 115 of the Crimes Act (Compiled Statutes, p. 1783). While not as precise or perhaps as well stated from either a legal or technical point of view as might be desired, it is clear that the defendant was fairly apprised that the girl whom he assaulted was under the age of 16 years and was also of the age of 11 years, which necessarily implied that she was under the age of 12 years as required by the statute, and was in no wise misled. He was as well informed respecting the age of the girl as he was of his own age when it was set forth as "to wit. 25 years." And it is quite apparent that when he pleaded non vult to the indictment he was under no misapprehension as to the offense with which he was charged and that he suffered no injury from the loosely drawn indictment.

With so much of the statement in the opinion of the Supreme Court that the power to resentence already existing at common law is carried into section 55 of the Criminal Procedure Act we cannot agree. The power to resentence during the term and before the sentence imposed has become effective through service of any part thereof existed at...