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State v. Witte

Decided: November 23, 1953.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HENRY R. WITTE, DEFENDANT-APPELLANT



On certified appeal from the Law Division of the Superior Court to the Appellate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Burling and Jacobs. For reversal -- Justices Oliphant, Wachenfeld and Brennan. The opinion of the court was delivered by Heher, J. William J. Brennan, Jr., J. (dissenting). Oliphant and Wachenfeld, JJ., concur in this dissent.

Heher

Defendant was convicted by a jury of nonfeasance in his office as Chief of Police of the Borough of Lodi, in the County of Bergen, and he appeals from the consequent judgment.

The indictment is in nine counts, each charging the knowing and willful failure of official duty in relation to gaming on the premises and during the times therein designated, contrary to R.S. 2:103-1. More specifically, it is alleged that defendant failed in his "public duty of using and exercising all proper, reasonable and effective means and all lawful means within his power, and diligence for the detection, apprehension, arrest and conviction of offenders against the laws," "for preserving the public peace and insuring good order" in the borough, and for "suppressing" as disorderly houses places used for gaming, bookmaking, lotteries, and so on.

Count 8 was abandoned by the State at the opening of the trial, for misdescription of the premises. Counts 2, 3 and 4 were dismissed by Judge Leyden for failure of proof of "knowledge or notice." The jury returned a verdict of guilty of the offenses charged in counts 1, 5, 6, 7 and 9. Sentence was suspended on count 1; and on counts 5, 6, 7 and 9, defendant was given concurrent terms of imprisonment in the county jail, and fined.

Defendant's appeal to the Appellate Division of the Superior Court was certified here on our own motion.

The maintenance and operation of gaming houses as alleged in the indictment is in the main conceded. The tenor of

the argument is that there was no proof of "corrupt collaboration between the Chief of Police and the 'interests' who operated the gambling enterprises," and defendant's conviction "is based upon proofs of presently known facts as distinguished from facts then generally known or then known to the defendant."

But error is assigned on rulings made in the course of the trial, apart from those relating to the sufficiency of the evidence offered to sustain the derelictions of duty charged, to which we shall now direct our attention.

I.

Count 1 charges that a gaming house identified as Costa's Barn on Route 6, in Lodi, was "continuously" maintained and operated from January 24, 1949 to and including March 31, 1949, and that defendant "continuously, unlawfully and wilfully did neglect, fail and omit" to take "all proper, reasonable, effective and diligent means" and measures "within his power" as chief of police "for the detection, apprehension, arrest and conviction" of the operators of the illegal establishment. Long before the commencement of the trial, this count of the indictment was on the State's motion amended to allege the continued maintenance and operation of the particular gaming house from January 24, 1947, rather than January 24, 1949, to and including March 31, 1949; and defendant now contends that this constituted an amendment of substance in disregard of Article I, paragraph 8 of the State Constitution of 1947, interdicting the prosecution of a criminal offense of the particular class unless on the presentment or indictment of a grand jury, and the Fifth and Sixth Amendments to the Federal Constitution, securing the same and kindred civil rights in certain cases.

The principles embodied in the Fifth, Sixth and Seventh Amendments rule the Federal Government alone, and do not constitute limitations upon the states. Fay v. People of State of New York, 332 U.S. 261, 67 S. Ct. 1613, 91 L. Ed. 2043 (1947); Brown v. State of Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936); Dimick v.

Schiedt, 293 U.S. 474, 55 S. Ct. 296, 79 L. Ed. 603, 95 A.L.R. 1150 (1935); Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961 (1916); Iowa Central R. Co. v. State of Iowa, 160 U.S. 389, 16 S. Ct. 344, 40 L. Ed. 467 (1896).

Where, as here, the subject matter of the indictment is a continuing offense, an amendment that merely enlarges without breaking the pleaded period of continuity, by substituting an earlier day of commencement of the nonfeasance for that laid in the indictment, relates to the form and not the substance of the charge. The offense remains the same; there is no change of identity -- no substitution of offenses, nor the introduction of a new and separate and distinct offense not comprehended in the indictment returned by the grand jury. Compare State v. Grothmann, 13 N.J. 90 (1953). The principle is exemplified in State v. Sing Lee, 94 N.J.L. 266 (E. & A. 1920).

The keeping of a disorderly house is in its very nature a continuing offense, and by the same token the knowing and willful failure of punitive action against the transgressor is a continuing offense, indictable as such. Forbearing penal and suppressive measures against a continuing breach of the criminal law is a continuing nonfeasance by the responsible law enforcement authority which is not ordinarily divisible into separate and distinct crimes, punishable as such. Where an indictment charges "one continuous offense, constituted both by a series of acts and by a duration of time," and "the time and the acts are properly proved, the offense is single and indivisible." Commonwealth v. Robinson, 126 Mass. 259 (Sup. Jud. Ct. 1879); Commonwealth v. Peretz, 212 Mass. 253, 98 N.E. 1054 (Sup. Jud. Ct. 1912).

The subject matter of the indictment under review concerns a course of conduct constituting nonfeasance, not specific criminal acts. Compare State v. Friedman, 135 N.J.L. 419 (Sup. Ct. 1947), affirmed 136 N.J.L. 634 (E. & A. 1948).

The indictment charges with a continuando an offense inherently continuous, an infraction of the criminal law that

has duration as distinguished from a transgression consisting of an isolated act, and likewise in nature indivisible; and an amendment that alleges the identical continuing offense begun at an earlier time than that laid in the indictment does not charge a new and different omission of duty than that presented by the grand jury. The offense laid to the accused remained the same after the amendment; the stated period of its continuance was merely extended -- a purely formal modification unrelated to the substance of the charge, and therefore not a separate and distinct offense beyond the ambit of the indictment found by the grand jury. Compare In re Snow, 120 U.S. 274, 7 S. Ct. 556, 30 L. Ed. 658 (1887); In re Nielsen, 131 U.S. 176, 9 S. Ct. 672, 33 L. Ed. 118 (1889). These cases are analogous. In the former it was held that cohabiting with more than one woman within the intendment of the Federal Act of March 22, 1882 (22 Stat. at L. p. 30, c. 47, 18 U.S.C.A., s. 513) is a single continuous offense subject to the one indictment or prosecution for all the time prior to the indictment; in the latter the holding was that but one indictment and conviction of the crime of unlawful cohabitation, under the Act of Congress of 1882, may be had for the time preceding the return of the indictment, since it is a continuous offense and therefore a single offense until prosecuted. So here, the indictment, in its original form and as amended, charges but one continuous offense, and therefore a single offense for the whole of the stated period; the amendment simply expanded the period of continuity; it did not introduce a different offense, either by way of substitution or as an additional count.

If State v. De Lorenzo, 80 N.J.L. 500 (Sup. Ct. 1911), has an essentially different connotation, we cannot accept it as sound in principle. Yet we concur in the observation there made that the keeping of a disorderly house may involve fundamentally different and unrelated habitual illegal practices, laid in separate indictments "presented at different times and covering different periods," and constituting "very dissimilar offenses," a radically different situation to which

the foregoing principle has no application. See, also, in this connection, State v. Yanetti, 101 N.J.L. 85 (E. & A. 1925). Here, the subject matter of count 1 is a continuing culpable failure of official duty.

The amendment is one of form rather than the averment of "another or different offense," and therefore in keeping with constitutional principle as embodied in Rule 2:4-13, now R.R. 3:4-5.

Where time is not of the essence of the offense laid in the indictment, an amendment altering the time of its alleged commission is permissible, if within the statutory period of limitation, unless thereby a different offense would be charged. The critical inquiry is whether the amendment would charge an offense not presented by the grand jury. State v. Grothmann, cited supra; State v. Friedman, cited supra; State v. Brown, 103 N.J.L. 519 (Sup. Ct. 1927); State v. Shapiro, 89 N.J.L. 319 (E. & A. 1916); People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378 (Ct. App. 1930); Vide 7 A.L.R. 1543; 68 A.L.R. 936.

And the accused has a right of appeal and corrective action, if need be, notwithstanding the suspension of sentence on the conviction under the particular count. Rule 1:2-3 A, now R.R. 1:2-4.

II.

But it is urged that the indictment does not "clearly charge a legal duty" nor "set up with particularity a specification of the acts ...


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