Goldmann, Smalley and Schettino. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendants appeal from an order of the Ocean County Court denying their motion to dismiss the first count of an indictment charging that they
"unlawfully and corruptly did conspire, combine, confederate and agree together, to assemble for the unlawful purpose of offering violence to the person and property of one Elwood Quinn under the pretense of exercising correctional powers over such person by violence and without authority of law, contrary to the provisions of R.S. [N.J.S.] 2 A:98-1, and that in the execution of said unlawful agreement and conspiracy between them, * * * and to effect the object thereof, [they] * * * on the 21st day of January, 1952, in the Township of Union, in the County of Ocean and State of New Jersey and within the jurisdiction of this Court, did assemble at the home of the said Elwood Quinn for the unlawful purpose of offering violence to the person and property of the said Elwood Quinn under the pretense of exercising correctional powers over the said Elwood Quinn by violence and without authority of law, contrary to the provisions of R.S. [N.J.S.] 2 A:126-1, and against the peace of this State, the Government and dignity of the same."
At the trial the court granted the prosecutor's motion to amend the reference to N.J.S. 2 A:126-1 to read N.J.S. 2 A:126-1 and 2.
Defendants contend that the indictment failed to charge a crime, basing their argument on the specific language of N.J.S. 2 A:126-2, which reads:
"Any person who participates in or is part of a mob, with the intent to inflict damage or injury to the person or property of an individual charged with a crime , or under the pretense of exercising correctional powers over such person by violence, and without authority of law, is guilty of a misdemeanor." (Italics ours)
They assert that the words "such person" in the disjunctive portion of the statute refers to an individual who has been
"charged with a crime," and that since the first count failed to state that Elwood Quinn was a person so charged, the indictment is fatally defective.
It is, of course, fundamental that every constituent element of the crime charged must be set forth in the indictment and not left to intendment. State v. Bleichner , 11 N.J. Super. 542, 547 (App. Div. 1951); State v. Solomon , 97 N.J.L. 252 (E. & A. 1922). And Rule 2:4-11 likewise requires that the indictment set out "the essential facts constituting the offense charged." As Judge Jayne observed in State v. Lombardo , 20 N.J. Super. 317, 321 (App. Div. 1952):
"However progressively liberal has become the legislative and judicial attitude toward the literal composition of indictments (see R.S. 2:188-5, 6, 7, 9 [not reenacted in N.J.S. 2 A ]; Rules 2:4-11, 13) and the discretionary disinclination to quash them unless palpably defective (State v. Western Union Tel. Co. , 13 N.J. Super. 172 (Cty. Ct. 1951), yet it is basically imperative that an indictment allege every essential element of the crime sought to be charged. State v. Schmid , 57 N.J.L. 625 (Sup. Ct. 1895); State v. Bleichner , 11 N.J. Super. 542 (App. Div. 1951).
The omission of an essential element cannot be supplied by inference or implication. State v. De Vita , 6 N.J. Super. 344 (App. Div. 1950); State v. Lustig , 13 N.J. Super. 149 (App. Div. 1951)."
On behalf of the State it is argued that although, at first glance, it would seem that the words "such person" in N.J.S. 2 A:126-2 refer back to the words "an individual charged with a crime," it is important that the whole statute be read together in order to arrive at a proper ...