On appeal from the Appellate Division of the Superior Court, certified by the Supreme Court on defendant's motion.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Heher, J.
Defendant was convicted on two indictments, numbered 47 and 48, charging that he induced a female child of 12 years of age in the first case, and another such child of 9 years in the second, "to submit to the doing" of a specified "act which would tend to debauch * * * and impair the morals" of the child, contrary to N.J.S. 2 A:96-3, for which R.S. 2:117-6.1 was later substituted without objection. The indictments were tried together. Each included a count for assault and battery on the particular child; but that count was dismissed by the county judge before submission of the cases to the jury.
The Appellate Division of the Superior Court affirmed the judgments of conviction. 24 N.J. Super. 190 (1953). We certified the causes for appeal on defendant's motion.
The basic question is whether defendant's constitutional rights were infringed by amendments of the indictments directed by the county judge upon the close of the State's case at the instance of the county prosecutor.
Indictment No. 47 alleged the commission of the offense on November 1, 1950. No. 48 charged in several counts three separate and distinct offenses involving the younger child on the same day: the first in Boonton, without a more particular designation of the place; the second, in a bedroom of defendant's home in Boonton; and the third, in the cellar of his home. No. 47 was amended to state the offense was committed "on a date between April 1, 1951, and May 8, 1951"; No. 48 was amended to read that the offense occurred "on a date between November 1, 1950 and May 8, 1951." There was an acquittal on the second and third counts of the latter indictment.
The Appellate Division said that the testimony of the children "disclosed without objection the recurrent commission" by the accused "of such unlawful practices at intervals over a period of the two preceding years," and in consequence
the indictments were amended, but as amended "neither indictment charged the occurrence of more than one offense." And reference was made to the instruction given the jury that "the Prosecutor is tied down to a proof of crime as charged in the indictment to a date which falls within those dates as I outlined them."
But the effect of the amendments and the charge was to render the accused liable to conviction for an offense against each child not the subject of an indictment by a grand jury in accordance with the guaranty of Article I, paragraph 8 of the State Constitution of 1947 that no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, save in certain cases not here pertinent. The amendments, made at the close of the State's case on the prosecutor's motion, extended the time specification of the indictments to include in each at least two separate and distinct offenses committed, so the children testified, on days other than the day named in the indictment. One of the children testified that the accused had been "doing this to" her "around two or three years"; the other said on a preliminary examination that it occurred "almost every time" she "went in the car," but she testified at the trial that there were but two such offenses. As to indictment No. 47, the prosecutor said, on the argument of the motion to amend, that there were "two occasions," and "both" between April 1, 1951 and May 8, 1951; as to No. 48, he referred to the child's testimony that the offense was perpetrated "on numerous occasions, going back" to November 1950. And the judge charged that the jury's "sole duty" was to determine whether "a crime of the nature complained of in the indictment" occurred within the time covered by the amendment.
Objection to the course thus taken was seasonably made.
An indictment is amendable in form but not in substance. The substantive process is exclusively the grand jury's under the constitutional limitation cited supra. And an amendment in matter of form is not permissible if thereby the ...