Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Cross-appeals, here consolidated, were taken from an order of the Superior Court holding the indictment to be duplicitous in that it combined several offenses in a single count, but denying the defendant's motion to dismiss and granting leave to the State to amend in order to remedy the defect.
The defendant, William R. Torrance, was indicted by the Hudson County grand jury alleging a violation of N.J.S. 2 A:111-1, formerly R.S. 2:134-1, which provides as follows:
"Any person who, knowingly or designedly, with intent to cheat or defraud any other person, obtains any money, property, security, gain, benefit, advantage or other thing of value by means of false promises, statements, representations, tokens, writings or pretenses, is guilty of a misdemeanor."
The indictment arose out of an investigation conducted by the Attorney-General concerning certain alleged "no show" practices in the office of the Hudson County Superintendent of Elections. The expression "no show" is used to describe a situation where a public employee collects his pay check, but fails to show up for work.
The indictment alleges the offense in a single count, the pertinent parts of which are as follows:
"* * * William R. Torrance * * * having been duly appointed as a temporary clerk by the Superintendent of Elections * * * and having accepted such appointment, was duly assigned to duty as an investigator * * * it was his duty to personally make * * * investigations * * * and record in writing upon forms supplied by the office * * * pertinent facts, data and information * * * and to deliver such completed forms to the Superintendent of Elections * * * For the performance of the aforesaid duties * * * Torrance received a salary from the County of Hudson * * * paid to him in semi-monthly installments * * *.
The trial court denied the defendant's motion to dismiss, which motion urged that: (1) the indictment does not state facts sufficient to constitute an offense; (2) the indictment does not adequately inform the defendant of the nature and cause of the accusation; and (3) the indictment is so vague, uncertain, indefinite and lacking in adequate specifications as to afford to the defendant no means of preparing his
defense. In considering the motion, the trial court did not rule on the separate grounds urged by the defendant, but did find the charge to be duplicitous in that there were four semi-monthly payments of money and that, therefore, several offenses were improperly included in the one count of the indictment. The order entered directed that the indictment be amended and that the State proceed upon one selected offense only.
The appeal of the State is founded on the theory that the indictment charged only one offense, each of the payments flowing from one continuing misrepresentation by the defendant.
R.R. 3:4-3 provides that an indictment must allege "the essential facts constituting the offense charged." State v. Solomon , 97 N.J.L. 252 (E. & A. 1921); State v. Lombardo , 20 N.J. Super. 317 (App. Div. 1952); State v. Algor , 26 N.J. Super. 527 (App. Div. 1953). In ...