On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Upon the State's motion, an order was made consolidating six indictments for trial. The Appellate Division granted defendants leave to appeal and we certified the appeals on our own motion before consideration of them by that court.
Each indictment charges an attempt to extort in violation of N.J.S. 2 A:85-5 and 2 A:85-1. Three run against defendant Manney, who is described therein as a duly elected and qualified member of the Board of Commissioners of the City of Passaic. The remaining three run against defendant, Capuano, who is described therein as a duly appointed and qualified member of the police department of that city. Defendants are separately charged with respect to three basic transactions, each being an attempt in August 1954 to extort from the low bidder for each of three contracts in connection with the erection of a municipal building. The allegations in the indictments against the defendants parallel each other, but each indictment mentions only the defendant charged therein and does not allege that the named defendant acted in concert with another.
On the motion to consolidate, the State contended that the defendants acted as a team in seeking to extort money from the low bidders. There were exhibited bills of particulars furnished defendants in which that concert is portrayed in identical language. We refer to the bills of particulars because they reveal the State's position without, of course, suggesting that a bill of particulars may supply any deficiency in an indictment.
"The court may order two or more indictments or accusations to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment or accusation. The procedure shall be the same as if the prosecution were under such single indictment or accusation."
We are thus referred to the rules relating to joinder of offenses and defendants. R.R. 3:4-7 reads:
"Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged, whether high misdemeanors or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."
"Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The disposition of the indictment or accusation as to one of several defendants joined in the same indictment or accusation shall not affect the right of the State to proceed against the other defendants."
With respect to the joinder of offenses charged against each defendant, R.R. 3:4-7 clearly would have authorized that course. The offenses "are of the same or similar character" and also ...