For the defendant in error, Orville V. Meslar, prosecutor of the Pleas of Morris county.
For the plaintiff in error, King & Vogt (Edmund A. Hays and William A. Hegarty, of counsel).
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
BROGAN, CHIEF JUSTICE. The plaintiff in error was convicted of lewdness. The defense was an alibi as to the date of the offense and a general denial of the charge.
The first ground upon which a reversal is sought is that the trial court erred in refusing to quash the indictment. The basis of that motion was that since section 51 of the Crimes act (2 Comp. Stat., p. 1762) denounces both open and private lewdness as separate offenses against the statute, the indictment was deficient as a matter of law since it did not specify which kind of lewdness was charged. The court held that the indictment sufficiently informed the defendant of the crime with which he was charged and that further particulars, if desired, might have been obtained by demand for bill of particulars. We think this ruling was correct. The indictment follows the language of the statute. This is sufficient. Graves v. State, 45 N.J.L. 203; State v. Cohen, 108 Id. 216. In any event, motions to quash are addressed to the sound discretion of the court. State v. Hegeman, 13
Id. 314, 323; State v. Dayton, 23 Id. 49, 52; State v. Lehigh Valley Railroad Co., 90 Id. 372, 376; State v. Simon, 113 Id. 521, 526; affirmed, 115 Id. 207; State v. Then, 114 Id. 415, 417.
Among the assignments of error and specification of causes for reversal, we find one, the ninth, which challenges the charge of the trial judge as error. The passage reads as follows: "You have heard the defense and you are entitled to place such credibility in that as you believe it deserves; and if, in relying upon that testimony, there is created a reasonable doubt in your mind as to his guilt he would be entitled to be acquitted, if you find he is not guilty beyond a reasonable doubt." (Italics supplied.)
This is not the correct legal rule. The state has the burden throughout the prosecution of a criminal case to prove the guilt of the defendant beyond a reasonable doubt. The underscored language, we think, placed upon the defendant the burden of showing beyond a reasonable doubt that he was not guilty. It is true that elsewhere in the charge the court laid down the correct rule in this particular for the government of the jury's deliberations, but an erroneous instruction is not cured by the existence of the correct instruction elsewhere in the charge unless the illegal one is withdrawn. State v. Parks, 96 N.J.L. 360. The citation of further authority for this well established rule is unnecessary.
The error complained of here is almost identical to that which brought about a reversal in the case of State v. Sandt, 95 Id. 49. In that case, it is pointed out, and it is equally applicable here, that the jury was told "in substance and effect that they must be satisfied that the men were not guilty beyond a reasonable doubt before they could be acquitted. This put on the defendants the burden of showing that they were innocent beyond a reasonable doubt when by law they were to be assumed innocent until the state overcomes that presumption and established the guilt of the defendants beyond a reasonable doubt."
Where the law is thus incorrectly charged, although it has been correctly stated elsewhere in the ...