Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Spence

Decided: July 6, 1955.

THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DONALD SPENCE, CARROLL PERKINS, TRADING AS PERKINS NURSERY, HENRY J. KNOLL, TRADING AS HOLLYWOOD FLORIST, HERMAN R. ZINN AND MITTERMEYER NURSERY CORPORATION, DEFENDANTS-RESPONDENTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

It appears to be acknowledged by all counsel that the indictment the validity of which we are requested to determine is unfashionably composed. Its informality in point of its questionable import and resultant legality has occasioned the submission to us of the several divergent aspects in which it may be perceived. We have given thoughtful consideration to all of the constructive advocacies that counsel have tossed into the judicial cauldron.

The indictment contains but one count, the seventh paragraph of which constitutes the bone of contention. We quote it:

"7. That on or about the first day of August, 1952, and from thence continuously to and including the day of the taking of this inquisition, at the City of Jersey City, County of Hudson, and within the jurisdiction of this Court, the said DONALD SPENCE, CARROLL PERKINS, trading as Perkins Nursery, HENRY J. KNOLL, trading as Hollywood Florist, HERMAN R. ZINN, and MITTERMEYER NURSERY CORPORATION, all late of the City of Jersey City, County of Hudson aforesaid, did unlawfully, knowingly and corruptly conspire, combine, confederate and agree together , between and amongst themselves, as much as in them lay, to pervert and obstruct in the said City of Jersey City the due administration of the public bidding laws of the State of New Jersey, to wit, R.S. 40:50-1, by causing the said City of Jersey City to enter into contracts for the doing of work and for the furnishing of materials, supplies, and labor where the sum to be expended exceeded the sum of $1,000.00 without said municipality first publicly advertising for bids therefor and without said municipality awarding the contracts to the lowest responsible bidder, and did unlawfully and corruptly conspire, combine, confederate and agree together to cheat and defraud the said City of Jersey City of its moneys by means of unlawfully and corruptly making and causing to be made divers fraudulent contracts between the said City of Jersey City and the said CARROLL PERKINS, trading as Perkins Nursery; HENRY J. KNOLL, trading as Hollywood Florist; HERMAN R. ZINN; and MITTERMEYER NURSERY CORPORATION for the doing of work and the furnishing of materials, supplies and labor at grossly excessive prices and at a sum in excess of $26,000.00 without public advertisement by the said municipality for bids therefor and without award of contract to the lowest responsible bidder, and by means of the said DONALD SPENCE unlawfully and corruptly prevailing upon the Board of Commissioners of the City of Jersey City to purchase for the said municipality without competitive bidding and at grossly

excessive prices large quantities of materials, supplies, trees, hedges, shrubbery and the like from the said conspirators at exorbitant prices and at prices greatly in excess of reasonable value; and by causing the said City of Jersey City to pay large sums of money for work alleged to be done by the said CARROLL PERKINS, trading as Perkins Nursery, and HENRY J. KNOLL, trading as Hollywood Florist, who, in fact, had rendered no work and who had not furnished any materials, supplies, trees, hedges, shrubbery or any of the like to the said City of Jersey City, and by means of causing false and fraudulent claims and vouchers for the payment of moneys by the said City of Jersey City to be prepared and executed, and by the further means of recommending to the said Board of Commissioners of the said City of Jersey City that resolutions be adopted by the said Board of Commissioners of the said City of Jersey City authorizing payment of moneys to the said CARROLL PERKINS, trading as Perkins Nursery; HENRY J. KNOLL, trading as Hollywood Florist; HERMAN R. ZINN; and MITTERMEYER NURSERY CORPORATION, mentioned in the said false and fraudulent claims and vouchers for the doing of work and furnishing of materials, supplies and labor, alleged to have been furnished, performed and rendered by the said CARROLL PERKINS, trading as Perkins Nursery; HENRY J. KNOLL, trading as Hollywood Florist; HERMAN R. ZINN; and MITTERMEYER NURSERY CORPORATION to the said City of Jersey City, and by the further means of obtaining and receiving by them, the said CARROLL PERKINS, trading as Perkins Nursery; HENRY J. KNOLL, trading as Hollywood Florist; HERMAN R. ZINN; and MITTERMEYER NURSERY CORPORATION, of large sums of moneys paid by the said City of Jersey City as the result of the submission of the said false and fraudulent claims and vouchers to the said Board of Commissioners of the said City of Jersey City, contrary to the provisions of N.J.S. 2 A:98-1, and against the peace of this State, the Government and dignity of the same."

We have italicized merely to indicate the sources from which the respective arguments arise. It is also feasible here to explain that the succeeding paragraphs, 8 to 68 inclusive, are devoted to the allegations of overt acts.

In response to the motions of counsel representing the defendants, the judge of the Hudson County Court concluded that the indictment alleged two separate unlawful conspiracies in the one count, the one to violate the public bidding laws of the State, and the other to cheat and defraud the City of Jersey City. He accordingly resolved that the indictment was duplicitous, not permissibly amendable, and

should be dismissed. It was so ordered, and from that adjudication the State prosecutes the present appeal.

We initiate our examination of the structure of this indictment with a consciousness of the progressive elimination of those technical and artistic objections so cogently regarded in the days of the early common law, yet also with a predominant realization of the importance of a firm adherence to those basic and fundamental principles which safeguard the right of the accused adequately to be informed of the "nature and cause of the accusation." Vide, State v. Winne , 12 N.J. 152 (1953); State v. Lefante , 12 N.J. 505 (1953); State v. Engels , 32 N.J. Super. 1, 6 (App. Div. 1954); State v. Hanly , 33 N.J. Super. 549 (Law Div. 1955).

Then, too, we assume that the judge perceived on the face of the indictment "the clearest and plainest" ground for concluding, as he did, that the indictment is "palpably defective." State v. Davidson , 116 N.J.L. 325, 328 (Sup. Ct. 1936); State v. Weleck , 10 N.J. 355, 364 (1952); State v. Russo , 6 N.J. Super. 250, 254 (App. Div. 1950), certification denied 4 N.J. 456 (1950). Since the motion to dismiss was one appropriately addressed to his judicial discretion, our appellate task is to determine whether in our opinion he mistakenly exercised it. In re Longo , 124 N.J.L. 176, 181 (E. & A. 1940); State v. Collins , 2 N.J. 406, 411 (1949); State v. Bunk , 4 N.J. 482, 485 (1950).

The sole reason announced by the court for the dismissal of the indictment is that it manifestly offends the rule forbidding the allegation of separate and distinct ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.