Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by
This is an appeal from a judgment of the Hudson County Court, dismissing indictments against defendants, respectively Mayor and Director of Public Safety and Chief of Police of the City of Bayonne, for alleged nonfeasance in failing to enforce gambling laws of this State. The indictments were dismissed on the ground that they lacked certainty and definiteness and failed to specifically inform the defendants of the charges against them, thereby making it impossible to prepare their defense.
It is conceded that the indictments under review are similar to those before the Supreme Court in State v. Jenkins and Mescall , 136 N.J.L. 112 (1947), which were quashed by that court for the same reasons that were successfully advanced
before the Law Division for dismissing the indictments here under review. The common law rule requiring certainty and particularity in indictments is re-affirmed and given continued vitality by our organic law, state and federal, Article 1, paragraph 10 (Bill of Rights) New Jersey Constitution , 1947, providing that "the accused shall have the right * * * to be informed of the nature and cause of the accusation." "A salutary rule of the common law," says the Massachusetts Supreme Court: "That no subject shall be held to answer for any crime or offense until the same is fully and plainly and substantially and formally described to him." Commonwealth v. Phillips , 16 Pick. 211. Mr. Justice Kalisch, speaking for the Supreme Court in State v. Hatfield , 87 N.J.L. 124 (1915), declared the requirement of certainty and positiveness in an indictment, quoting the following authority:
"'Though, in general it may be sufficient to state the fact in the words of the act of parliament, yet it is not always safe merely to convey the description of the offence in these words; for where the statute describes an offence in such general terms as will embrace a variety of circumstances, a general description, though pursuant to the words of the act, is insufficient unless the circumstances be set out with time, place,' &c. Paley Sum. Conv. (8 th ed.) 197; Rex v. Jarvis , 1 Burr. 148; 1 Str. 494, 495; Hale P.C. (1 st Am. ed.), ch. 25, p. 187, note 7."
Chief Justice Case in State v. Jenkins-Mescall, supra , at p. 113, in referring to indictments for nonfeasance in office, stated:
"Misconduct of that nature necessarily consists of a particular incident or of a series of particular incidents. It is not just an attitude. It is action; or it is non-action with respect to specific incidents."
Alluding further to the requirement of specification, he stated:
"* * * A defendant is unable to plead or to prepare a defense against such proofs unless he knows in advance the particular offense or offenses counted upon; not merely the general definition of the crime, either in the words of the statute or according to the common
law, but such details of the act or omission as will enable him to know precisely what accusation is laid against him and to prepare his case with foreknowledge of what he will be called upon to meet."
We are impressed with the logic and soundness of the opinion of Chief Justice Case in the Jenkins-Mescall case and are persuaded that we should follow it in our determination of this appeal. (Parenthetically, in State v. Jenkins-Mescall, supra , an appeal was taken to the Court of Errors and Appeals and ...