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State v. Quinn

Decided: February 19, 1932.

STATE OF NEW JERSEY, DEFENDANT IN ERROR,
v.
MICHAEL QUINN AND HARRY SCHWARTZ, PLAINTIFFS IN ERROR



On strict writ of error to Camden Court of Quarter Sessions.

For the state, Clifford A. Baldwin, prosecutor.

For the plaintiffs in error, Walter S. Keown.

Before Gummere, Chief Justice, and Justices Parker and Case.

Case

The opinion of the court was delivered by

CASE, J. The plaintiffs in error, Michael Quinn and Harry Schwartz, were separately indicted for carrying deadly

weapons. By consent the indictments were tried together. The indictments were amended during the trial. The defendants were both convicted and come up on strict writ of error. The cases are before us as one.

Each of the indictments contained three counts. The first count charged that the accused "unlawfully did carry and possess certain dangerous, offensive and deadly weapons and instruments, to wit, one shotgun and one revolver, carried in or about his clothes or on his person." The second charged that the accused "unlawfully did carry and possess certain dangerous, offensive and deadly weapons and instruments, to wit, one shotgun and one revolver, carried in and about his clothes." The third charged that the accused "unlawfully did carry and possess certain dangerous, offensive and deadly weapons and instruments, to wit, a revolver and one shotgun carried in and about his person."

No question was raised concerning the indictments until, at the close of the state's main case, the prosecutor moved to amend the indictments by substituting the word "conceal" for the word "carried" wherever the latter occurred in the several counts. Against the objection of the defendants, and with exception allowed, the court granted the amendment. It is contended on behalf of Quinn and Schwartz that that was error.

The prosecutor concedes that the crime for which the defendants were convicted is purely statutory and that the indictments, both as originally found, and as subsequently amended, are based upon chapter 96, Pamph. L. 1927, p. 183, Pamph. L. 1924, to the Crimes act, chapter 235, Pamph. L. 1898. He suggests no other statutory authority. The amendatory act provides that "any person who shall carry any revolver, pistol or other firearm * * * concealed in or about his clothes or person * * * shall be guilty of a misdemeanor."

The statutory provisions relating to amendments of indictments by the trial court are to be found in sections 34 and 44 of the Criminal Procedure act ("An act relating to courts having ...


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