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State v. Sullivan

Decided: November 10, 1954.


Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).


[33 NJSuper Page 140] Following an indictment for perjury which was sustained in State v. Sullivan , 25 N.J. Super. 484 (App. Div. 1953), certification denied 13 N.J. 289 (1953), certiorari denied 347 U.S. 903, 74 S. Ct. 428 (1954), defendant was indicted for false swearing under R.S. 2:157-4 (now N.J.S. 2 A:131-4) on the basis, we are told, of the same testimony with respect to

which the first indictment was returned. Neither indictment has, as yet, been brought to trial. Defendant's motions to dismiss the second indictment and for a bill of particulars having been denied by the County Court, he applied for leave to appeal from the resulting order. Leave was granted only with respect to the refusal of a bill of particulars, and that is the subject now before us.

The indictment contains eight counts. Each follows the same format. Each alleges that defendant testified under oath on a stated day in the trial of homicide charges against others who are named, quotes excerpts from the testimony, and concludes with a statement of the specific matters with respect to which the quoted testimony is charged to have been knowingly false. We gather that defendant is a physician. In general the testimony charged to be false consists of statements of defendant with respect to his observations of the men charged with murder and his opinions on the basis of those observations.

The application was made under R.R. 3:4-6 which provides in part:

"Bills of particulars shall be ordered by the court, when the indictment or accusation is not sufficiently specific to enable the defendant to prepare his defense. * * *"

This rule explicitly states the purpose of a bill of particulars to be "to enable the defendant to prepare his defense," and the basis to be that "the indictment * * * is not sufficiently specific" for that purpose. This standard is not the equivalent of the standard prescribed for the sufficiency of an indictment itself. An indictment must allege "the essential facts constituting the offense charged." This ancient rule is expressed in R.R. 3:4-3. That an indictment satisfies the stated rule is no barrier to a bill of particulars. State v. Engels , 32 N.J. Super. 1 (App. Div. 1954). Indeed, it is settled that an indictment deficient for want of a statement of the essential facts may not be saved by a bill of particulars, State v. Gibbs , 134 N.J.L. 366 (Sup. Ct. 1946) and State v. Daly , 3 N.J. Super. 247 (App. Div. 1949);

and this is so because an indictment must allege facts sufficient to sustain a conviction, State v. Winne , 12 N.J. 152, 178 (1953), and because otherwise an accused might be brought to trial upon a charge not found by the grand jury or upon a charge different from the one which the grand jury intended. Linden Park Blood Horse Association v. State , 55 N.J.L. 557, 558 (E. & A. 1893); State v. Schmid , 57 N.J.L. 625, 626 (Sup. Ct. 1895).

There is authority that a bill of particulars may be ordered to protect against a subsequent prosecution for the same offense. See 5 A.L.R. 2 d 444. Such assurance in our State is afforded by the principles relating to the sufficiency of the indictment itself, State v. Winne, supra (12 N.J. at 178). Whether a need for such assurance is a proper basis for a bill of particulars in the light of the phrasing of R.R. 3:4-6, need not be considered since the indictment here is sufficiently explicit to preclude that hazard and we do not understand defendant to suggest otherwise.

As stated above, an indictment may allege the essential facts and yet leave a defendant in need of further information to enable him to prepare his defense, State v. Davis , 6 N.J. Super. 162 (App. Div. 1950). We italicize the word "prepare," because it is the key to the special office of a bill of particulars. The ultimate objective is to assure the accused a decent opportunity to prepare in advance of the trial to meet the State's case. The difficulty lies in fixing the outer borders of the area within which the element of surprise may thus be eliminated. On the civil side, we have embraced a philosophy of discovery which may lay bare the ultimate evidence on both sides. Our practice in criminal matters is strikingly different. Cf. State v. Tune , 13 N.J. 203 (1953). Much can be and has been said on the merits of contending approaches to the problem, but we cannot go beyond the principles as they presently exist. Greenspan v. Slate , 22 N.J. Super. 344 (App. Div. 1952), reversed on other grounds 12 N.J. 426 (1953).

A defendant may not seek a statement of the evidence, as such, but a bill of particulars, ...

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