On error to the Essex County Court of Quarter Sessions.
For the defendant in error, William A. Wachenfeld, Prosecutor of the Pleas, and C. William Caruso, Special Assistant Prosecutor.
For the plaintiff in error, Carl Abruzzese.
Before Brogan, Chief Justice, and Justices Parker and Oliphant.
The opinion of the court was delivered by
OLIPHANT, J. Plaintiff in error was convicted of breaking, entering and larceny. He was sentenced to the state prison for a term of three to five years.
This writ brings up for review the entire proceedings in the case. R.S. 2:195-16, formerly section 136 of the Criminal Procedure Act.
There are thirty-four assignments of error and identical causes for reversal, some of which are abandoned. Those briefed fall into five categories.
In order to determine the first of these it is necessary to set forth the chronological order of events. The crime was committed on July 5th, 1942; the indictment in the case was returned by the grand jury for the September, 1942, term; and it named as defendants Leonard Grippe and "John Doe." There was no description of "John Doe" in the indictment. On April 5th, 1943, the indictment was amended, the name of the plaintiff in error being substituted for "John Doe." On November 1st, 1943, the defendant appeared in court with counsel and pleaded not guilty to the indictment. There was no reservation on his part to withdraw the plea for the purpose of later challenging the indictment. At the time the plea was entered the indictment had already been amended and, manifestly, the plaintiff in error knew it charged him with the crime. The trial date was postponed at the request of the defendant and no steps were taken to attack the validity of the indictment until the day of trial on May 31st, 1945, when a motion was made to withdraw the plea of not guilty for the purpose of filing a plea in abatement and then moving to quash the indictment. This motion was denied and such denial is assigned as error, the argument being that since the indictment originally named "John Doe" as the defendant and contained no description of this defendant it was defective and void.
The fallacy of this argument is that neither the sufficiency of the indictment nor the motion to quash was before the court but simply the propriety of the motion to withdraw the plea.
Defendant at the time he pleaded knew the indictment had been amended, and in November, 1944, filed an order, which he had obtained from the court, giving him leave to serve on the state a bill of particulars in connection with an alibi defense. Therein he described himself as the defendant in the case and thereby indicated that he intended to contest the case on its merits as he likewise had done when he signed his bail piece. He knew at all times he was the person named as the defendant.
It will be observed that defendant's motion to withdraw his plea for the purpose of attacking the indictment was not made until after the ...