Eastwood, Jayne and Smalley. The opinion of the court was delivered by Jayne, J.A.D.
[31 NJSuper Page 52] The defendant was tried and convicted in the Essex County Court by a jury on October 17, 1952 on
nine indictments, six of which charged him with breaking and entering, larceny, and receiving stolen goods, one with unlawful possession of burglary tools, one with the offense of maliciously setting fire to a building, and another with breaking and entering. The defendant was thereafter charged by accusation with being a multiple offender. On October 31, 1952 he was sentenced to imprisonment in the New Jersey State Prison for terms of from 10 to 14 years for the crimes of breaking and entering, receiving stolen goods, and maliciously setting fire, respectively, with the direction that such sentences should run consecutively. Sentences for the remaining convictions, including that of being a multiple offender, were in some instances suspended and in others directed to run concurrently with the term of one of the sentences first mentioned.
The defendant has appealed from the judgments of conviction in forma pauperis , and we pause to state that his court-appointed counsel has assiduously examined the record of the convictions and on behalf of the defendant introduced six points for our consideration. We are of the opinion that Points I, II, III, IV and VI are untenable.
Point V, we believe, exhibits merit. It implicates the sufficiency of the allegations of indictment numerically identified as No. 290. The crime obviously and indeed expressly intended to be alleged is one or the other of the offenses described in N.J.S. 2 A:89-2.
Prior to the enactment of this statute in our recent revision we had in this category of criminal offenses R.S. 2:109-2 which comprehended "Any person who shall willfully or maliciously burn or cause to be burned " a building, and also R.S. 2:109-3 which encompassed "Any person who shall willfully or maliciously set fire to * * * with intent to burn " a building. The former was a high misdemeanor, the latter a misdemeanor. It as apparent that the offenses were distinguished in nature and character and in their punitive consequences.
Although the offense of setting fire to a building with intent to burn it has been conspicuously upgraded to that of
a high misdemeanor in Title 2 A , we are not persuaded by the argument of the prosecutor that the two theretofore distinct offenses were amalgamated into one. In reality they remained unconsolidated, but for reasons of convenient aggregation they were enclosed in the one section of the statute.
Therefore it seems apparent that it is a crime to "willfully or maliciously burn " a building but not a crime merely to set fire to a building in the absence of an "intent to burn" it. It is quite conceivable that under this section one might set fire to a building by thoughtlessness and inadvertence.
Succinctly stated, the point in the present appeal is that indictment No. 290 omitted the allegation of the element of an intent to burn the building. It did, however, allege that the defendant "did willfully and maliciously set fire to a certain meat processing building, the property of Fred Horns & Sons, a corporation, located at No. 63 Paris Street, in the City of Newark, in the County of Essex aforesaid, contrary to the provisions of R.S. 2 A:89-2 * * *."
It is not evident that any motion was made to quash the indictment for its deficiency in that respect or any objection made at the trial to the inadequate composition of the indictment. But see State v. Flynn , 76 N.J.L. 473 (E. & A. 1909); State v. Mandeville , 88 N.J.L. 418 (Sup. Ct. 1916), affirmed 89 N.J.L. 228 (E. & A. 1916); State v. Quinn , 108 N.J.L. 467 (Sup. Ct. 1932).
It is elementary that a judgment of conviction resolves the defendant to be guilty only of that with which he is charged in the indictment, and it is fundamental that where the indictment fails to allege an offense against the law, the judgment of conviction of crime is ineffectual and deserves nullification when brought to the attention of the court on appeal. State v. ...