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State v. Callary

Decided: March 3, 1932.


On writ of error to the Cape May County Court of Quarter Sessions.

For the defendant in error, T. Millet Hand, prosecutor.

For the plaintiff in error, Tuso & Stanger.

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


The opinion of the court was delivered by

CASE, J. The case comes up on strict writ and also under the one hundred and thirty-sixth section of the Criminal Procedure act. The plaintiff in error sets out eleven assignments of error and twenty-three specifications of causes for reversal and argues eighteen points in his brief. The conviction was on an indictment, founded on section 126 of the Crimes act ("An act for the punishment of crimes (Revision of 1898)," 2 Comp. Stat., p. 1743), charging that the defendant did "willfully or maliciously set fire to or burn

or aid, counsel, procure, or consent to the setting fire to or burning of a building, to wit, a dwelling house and store, or goods contained therein, which said building was at the same time insured by certain corporations against loss or damage by fire, the said Clarence N. Callary having then and there the intent to prejudice said fire insurance companies."

The first point argued is that the state failed to serve the defendant below with a copy of the indictment and a list of the jurors three entire days before the trial in accordance with section 54 of the Criminal Procedure act ("An act relating to courts having criminal jurisdiction and regulating proceedings in criminal cases (Revision of 1898)," 2 Comp. Stat., p. 1820). The point is based on the assumption that the crime alleged is that of arson. Notwithstanding the inclusion of the words "dwelling house" within the videlicet, the indictment did not charge arson. The essence of the charge was that the defendant fired an insured building with the intent of defrauding the insurer. The words "dwelling house and store" are incidental; they are a parenthetical identification of the building. The indictment is unmistakably for a violation of section 126, supra, and that section does not set out the crime of arson. It embraces quite different elements and a lesser penalty. The defendant was, therefore, not entitled to the service referred to. State v. Heller, 2 N.J. Mis. R. 1023. Moreover, we find nothing in the record, other than in the specifications of causes for reversal compiled after the trial was ended, to suggest that the copy of indictment and list of jurors were not served. There was no objection noted before or during the trial, no request for postponement, no exception taken and no error assigned. Even assuming that the defendant was entitled to the service and that there was none, no apparent harm came from the omission.

The second point is that the court erred in not granting an adjournment of the trial on an affidavit by the defendant and a certificate, unsworn, by a physician, showing the illness of an alleged material witness in the person of the defendant's father. For the purpose of the discussion we shall assume

that an application was actually made and refused, though we do not find a record thereof. The doctor's certificate stated that the witness was "suffering from chronic kidney disease and an abnormal mentality due to a stroke of paralysis." The proof submitted did not show when, if ever, the witness would sufficiently recover to attend court. Ordinarily a motion to postpone a trial is addressed to the discretion of the court. State v. Grossman, 94 N.J.L. 301. It was so in this case and the discretion was not abused.

The third point is directed towards the wording of the indictment, the essential portion of which is recited, supra. No objection was made to the indictment before the jury was sworn. After the state's opening, counsel for the defense asked the court to direct the prosecutor to select which of the disjunctive charges in the indictment the defendant was called upon to answer. In so doing counsel admitted that the motion was directed toward an error apparent on the face of the indictment. The court refused the request, and the exception goes to the refusal. It was said in State v. Hill, 73 N.J.L. 77: "The rule is entirely settled that if a statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count; but it must use the conjunctive 'and' where 'or' occurs in the statute else it will be defective as being uncertain." The indictment offended that legal principle. But any objection to the indictment for defect of form or substance apparent on the face thereof should be taken before the jury is sworn (Criminal Procedure act, section 44, 2 Comp. Stat., p. 1834), unless the fault in the indictment is such that no crime is charged. State v. Flynn, 76 N.J.L. 473. In the indictment before us either of the disjunctive phrases, namely, the willfully or maliciously setting fire to the property and the ...

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