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State v. Rosen

Decided: October 14, 1958.

STATE OF NEW JERSEY
v.
HARRY ROSEN, DEFENDANT



On indictment.

Schneider, J.c.c. (temporarily assigned).

Schneider

The above case came on for trial on October 6, 1958. The defendant waived a jury trial and stipulated and conceded that the State would prove the allegations of the indictment and defendant would admit the charges. Defendant moved for dismissal of the indictment on three grounds.

The defendant embezzled $7,158 from his employer A.S. Beck Shoe Corporation in the year 1939. He was indicted in that year by Indictment No. 19920. The defendant disappeared and nothing was heard of him. On February 2,

1955 the assignment judge dismissed the indictment by reason of its age and the fact that defendant had not been apprehended in 16 years.

In 1957 the defendant notified the prosecutor that he was and had been in California and would give himself up. He was brought back to Bergen County and reindicted for the embezzlement -- that on December 23, 1939 he had embezzled the money. The indictment contained no allegation that defendant had been a fugitive from justice so as to explain the 18-year period from the date of the commission of the offense and the date of the indictment.

Defendant contends that the indictment does not set forth sufficient facts to constitute a crime since the indictment shows a date outlawed by the statute of limitations with no allegation to show defendant was a fugitive from justice. He further contends an acquittal (autrefois acquit) by reason of the dismissal of the previous indictment by the assignment judge. He further contends the indictment was not returned within two years of the commission of the offense.

The attack is on the new indictment on the ground of autrefois acquit and failure to set forth in the indictment the admitted fact of the defendant being a fugitive from justice.

It was agreed by defendant that if this motion was decided in favor of the State, he should be found guilty as charged.

1. The dismissal of the previous indictment by the assignment judge 16 years after its return, by reason of the absence of the defendant and for the purpose of clearing the calendar, does not entitle defendant to have a new indictment, later returned, dismissed on a plea of autrefois acquit. The defendant has not been prejudiced by the previous dismissal.

When a person has been placed on trial on a valid indictment before a court of competent jurisdiction, has been arraigned and has pleaded, and the jury has been impaneled and sworn, he is in jeopardy. If the jury is discharged without the accused's consent for a reason legally ...


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