On error to the Passaic Quarter Sessions.
For the plaintiffs in error, Minturn & Weinberger, Chandless, Weller & Selser and John W. Griggs.
For the defendant in error, James D. Carpenter, Jr., and Michael Shershin.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
BODINE, J. The defendants were convicted of conspiracy. A plea of not guilty was withdrawn in order that a motion might be made to quash the indictment. The motion was denied. The clerk of the court, however, did not reinstate the plea. Notwithstanding, the jury was drawn and the case proceeded with the observation of every formality. Motions for a directed verdict were denied, both at the close of the
state's case and at the close of the entire case. Counsel summed up in the usual manner and the jury was charged. There is nothing to suggest that there was not an issue which the court was trying in a most solemn and legal manner, in accordance with the settled practice in our courts.
The failure to reinstate the plea of not guilty is urged first as a ground of reversal. Defendants rely upon the cases of State v. Brennan, 83 N.J.L. 12, and State v. Acton, 109 Id. 34. The Court of Errors and Appeals by failing to approve discountenanced the rule in the Brennan case. 110 Id. 449. It is noteworthy that in the Acton case the state did not appear in the Supreme Court. It is, therefore, apparent that the question was never fully argued. We view the question distinctly open in this court, as well as in the Court of Errors and Appeals. In the case of State v. Berrian, 22 Id. 9, 30, it was said: "In Harris' case (2 Cro. 502), upon an indictment for nuisance the record was removed, after conviction, into the King's Bench by certiorari: on examination of the record, it appeared that no issue was joined, and so the verdict was without issue. The court, upon motion, ordered it to be amended, by the insertion of the similiter; for it was but matter of course, and by intendment was omitted in the entry by default of the clerk."
In the case at bar the reinstatement of the plea of not guilty was but a matter of course. A question from the clerk would have elicited the answer. The defendants, represented by able counsel, well knew that they were being tried. There seems to be no valid reason why this court should indulge in the solemn farce of reversing the judgment below upon the ground that there was no issue tried. The parties concerned and every bystander knew there was one. The court should follow the practice which anciently obtained, when criminal proceedings were far more strict, and order the record amended to show the plea of not guilty reinstated as it should have been, and would have been but for the default of the clerk of the court.
There was no doubt of the identity of the accused. The
defendants were represented by counsel who knew full well the very nature of the charge. Further, they had entered a plea which was withdrawn by leave of the court in order that motions which were later denied might be entertained. The reinstatement of the plea of not guilty by the clerk of the court was a formality of the most trivial sort. We think the true rule is stated in 16 Corp. Jur. 388, as follows: "It has been held that where the plea is withdrawn, conditionally, for ...