On certification granted to the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Jacobs and Brennan. For affirmance -- Justices Oliphant, Wachenfeld and Burling. The opinion of the court was delivered by Vanderbilt, C.J.
The defendant was convicted on both counts of each of three indictments, all of which were identical except in alleging the commission of the crimes on different days over a period of four months. The first count of each indictment charged that the defendant "did carnally abuse a girl (naming her) aged nine years, contrary to the provisions of R.S. 2:163-1." The statute reads as follows:
" Any person who shall have carnal knowledge of a woman forcibly against her will, or shall aid, abet, counsel, hire, cause or procure any person to commit such offense, or who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child under the age of twelve years, with or without her consent, shall be guilty of a high misdemeanor , and punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor not exceeding thirty years, or both; or who, being of the age of sixteen or over, shall unlawfully and carnally abuse a woman-child over the age of twelve years and under the age of sixteen years, with or without her consent, shall be guilty of a high misdemeanor, and punished by a fine not exceeding two thousand dollars, or imprisonment at hard labor not exceeding fifteen years, or both." (Emphasis added.)
This statute, with amendments not pertinent here, is now found in N.J.S. 2 A:138-1.
The second count of each indictment charged that the defendant "did commit an assault upon" his victim (naming her) "aged nine years, contrary to the provisions of R.S. 2:110-2." This statute reads:
"Any person who shall commit an assault with intent to kill, or to commit burglary, rape, robbery or sodomy, or to carnally abuse a female under the age of sixteen, with or without her consent, shall be guilty of a high misdemeanor, and punished by a fine not exceeding three thousand dollars or by imprisonment at hard labor not exceeding twelve years, or both."
This statute, with amendments immaterial here, is now N.J.S. 2 A:90-2.
Prior to the trial the defendant moved to dismiss the indictments on the ground that the indictments failed to charge an offense under R.S. 2:163-1 in that they did not contain an allegation in the language of the statute that the defendant was sixteen years of age or over. In fact he was 53 years old. His motion was repeated at the close of the State's case and again at the conclusion of the trial, being denied each time. The defendant appealed his conviction to the Appellate Division of the Superior Court, which court reversed the judgment below, first, on the ground that the first count of each of the indictments failed to allege the age of the defendant, and secondly, because the second count of each indictment failed to allege an intent to commit a crime or to name the intended crime, 23 N.J. Super. 511 (1952).
This appeal by the state raises two questions, one of criminal law and the other of pleading.
The primary purpose of an indictment is to inform the defendant of the nature of the offense charged against him, so that he may adequately prepare his defense, while a second function is to serve as a shield from another indictment for the same offense, State v. Winne, 12 N.J. 152, 178 (1953). If the defendant should be reindicted, he may use the first indictment and his acquittal or conviction thereon to avoid the threat of double jeopardy by virtue both of our Constitution, Article I, par. 11, and the common law, State v. Di Giosia, 3 N.J. 413 (1950). See also 4 Barron, Federal Practice and Procedure (1951), sec. 1914.
The sufficiency of an indictment is to be determined in the light of the pertinent rules of court and judicial decisions. Rule 2:4-11, dealing with the nature and contents of an indictment, reads, so far as it is pertinent here, as follows:
"The indictment or accusation shall be a written statement of the essential facts constituting the offense charged. * * *
Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state for each count the official or customary citation of the statute or statutes which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice."
The apposite rules on appeal are Rules 1:2-19(a) and (b) -- (a) dealing with matters advantageous to a defendant, while (b) treats of correlative instances of the ...