On error to the Mercer Quarter Sessions.
For the defendant in error, Erwin E. Marshall, prosecutor of the pleas, and Leo J. Rogers, assistant prosecutor.
For the plaintiff in error, Meyer M. Semel.
Before Brogan, Chief Justice, and Justices Parker and Bodine.
The opinion of the court was delivered by
PARKER, J. The defendant below was convicted, and sentenced to a minimum term of thirteen years and a maximum term of sixteen years, upon the following indictment:
"The Grand Inquest of the State of New Jersey, in and for the body of the County of Mercer, upon their respective oath, Present, That Luigi Garzio late of the Township of Ewing in the said County of Mercer, on the twenty-third day of September in the year of our Lord nineteen hundred and thirty-two, with force and arms, at the Township of Ewing aforesaid, in the County aforesaid, and within the jurisdiction of this Court, did then and there unlawfully, willfully and maliciously place in the ground and against and near a certain building, to wit, the house of one John J. Boscarell, situate on Grand Avenue, in the Township of Ewing, in the County of Mercer aforesaid, dynamite and other highly explosive substances, and did then and there ignite a certain fuse attached thereto causing an explosion of said dynamite and other highly explosive substances, with intent to unlawfully injure the said house of John J. Boscarell and the contents thereof; contrary to the form of the statute in such case made and provided, and against the peace of this state, the government and dignity of the same."
At the time of the explosion, defendant was not present in person. The proofs tended to show that he was an accessory before the fact, in that he had supplied the material for the explosion and procured others to put the explosive in place and light the fuse. The point was made throughout the trial, that defendant could only be convicted as an accessory and should have been indicted as such. Furthermore it was argued in the trial court, and is argued here, that as any active connection of defendant was prior to the explosion, the indictment should have charged conspiracy only and that it would not support conviction of the offense charged therein.
Still further, defendant claims that the indictment is referable to three different statutes, viz., (a) section 128 of the Crimes act (Comp. Stat., p. 1786); (b) section 1 of the Supplement of 1909 (Pamph. L., p. 179), found in Comp. Stat., p. 1775, as placitum 93 a, and (c) section 2 of the same Supplement, Ibid. 93 b.
The first section of the supplement may be disregarded, as it refers only to having explosives in ...