Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Eastwood, S.j.a.d.
[33 NJSuper Page 2] The defendant-appellant was convicted by the Municipal Court of Hopewell Township, Mercer
County, of operating a motor vehicle while under the influence of intoxicating liquor in contravention of N.J.S.A. 39:4-50. On appeal and a trial de novo , the Mercer County Court similarly found the defendant guilty.
The grounds of appeal asserted by the defendant are: (1) that there was no evidence to support a conviction on December 12, 1953, as charged in the complaint; (2) there was insufficient proof that the defendant was operating his motor vehicle; and (3) the evidence does not support the State's contention that he was not in fit condition when he drove to the scene of his apprehension.
Rather than indulge in a factual recital at this point, we will refer to the pertinent facts as we deal seriatim with defendant's grounds of appeal.
In the first place, we reach the conclusion that there is no merit in the first ground of appeal. The complaint charged that the offense was committed "on the 12th day of December (Sat.), 1953, at 12:45 A.M." and the jurat is dated December 12. At the Municipal Court hearing there was some colloquy as to what Saturday was and as a result the municipal magistrate crossed out "12" and substituted "13." During the de novo trial before the County Court and on the basis of the testimony of the State's witnesses (two state troopers and the medical examiner), on motion of the State, the date of December 12 was restored in the complaint. The motion was granted without any objection by the defendant; in fact, defendant's counsel conceded the broad power of the court to permit such an amendment. Nor did the defendant contend that he was surprised or unprepared to meet the issue created by the change of date. Neither did he request any continuance for the purpose of proffering other testimony on the question. The defendant made timely motion for acquittal on the ground, inter alia , that there was no proof as to having operated his automobile while drunk on December 12th.
Secondly, the State's proofs were that the offense occurred on December 13; there was no evidence to support a conviction of an offense committed on December 12. We
are convinced, however, that the variance is not fatal. 2 Wharton's Criminal Evidence (11 th ed.), par. 1039. In the case of State v. Shapiro , 89 N.J.L. 319 (E. & A. 1916), it was held that where the date of the offense in a criminal prosecution is not of the essence, proof may be offered by the State that the offense charged was committed on any day within the period covered by the statute of limitations. The test as to whether time is of the essence depends upon whether an act may be innocent if committed at one time, but criminal at another. State v. Calabrese , 99 N.J.L. 312 (Sup. Ct. 1924). Drunken driving is statutarily condemned at all times. N.J.S.A. 39:4-50. This question was considered in the case of State v. Johnson , 20 N.J. Super. 93 (App. Div. 1952), where Judge Goldmann, speaking for the court, stated, 20 N.J. Super. at page 95:
"The doctrine that averment of the time of the commission of the crime is altogether formal, unless the time itself be a legal constituent of the offense, dates back to Ketline v. State , 59 N.J.L. 468, 470 (E. & A. 1896). Time is not of the essence of the offense 'except in cases where an act may be innocent, if done at one time, but criminal if done at another.' State v. Calabrese , 99 N.J.L. 312, 315 (Sup. Ct. 1924), affirmed per curiam 100 N.J.L. 412 (E. & A. 1924)."
Consideration must also be given to R.R. 3:10-10(b), which provides that an appeal operates as a waiver of all defects in the record, "* * * including any defect in, or the absence of any process or charge laid in the complaint, and as a consent that the court may, during or before the hearing of the appeal, amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the surrounding circumstances, of which the tribunal from whose judgment or sentence the appeal is taken had jurisdiction."
Thirdly, the defendant's contentions that the proofs fail to establish that he was (a) operating his motor vehicle and (b), was under the influence of intoxicating liquor. These ...