Price, Gaulkin and Foley. The opinion of the court was delivered by Price, S.j.a.d.
Defendant appeals from an order of the County Court denying his motion to dismiss an indictment. Leave to take this appeal was heretofore granted by this court. R.R. 2:2-3; 3:5-5(6)(a).
Defendant was indicted for embezzlement for violating N.J.S. 2 A:102-5. The indictment contains ten separate counts each alleging embezzlement during a calendar month from August 1957 to July 1958, excluding the months of October 1957 and January 1958. The State, on demand, gave defendant a bill of particulars which alleged that "there was a continuous embezzlement during each of the months charged in each of the ten counts of the indictment."
Defendant moved to dismiss the indictment upon the ground, inter alia , that "[t]he indictment is duplicitous and multifarious, in that it attempts to make ten separate embezzlements out of one continuous embezzlement."
Although the record discloses that the motion was directed only to dismissal of the indictment, on this appeal defendant asserts in his brief that he sought "either (a) a dismissal of the indictment so that a proper one might be found; (b) an amendment of the indictment to charge a single offense to which the defendant would consent; or (c) that
the court consider the indictment as charging one overall offense." As above stated, the trial court denied the motion and defendant appealed.
Defendant places stress upon a former statute R.S. 2:188-19, which was not re-enacted in Title 2 A. This provided:
"In an indictment for embezzlement there may be charged any number of distinct acts of embezzlement which may have been committed by the defendant against the same master or employer, within six months from the first to the last of such acts."
It is contended that the failure to re-enact this statute indicated a legislative intent to prohibit indictments of the type now under review. Defendant further urges that cases decided while the statute was in force are not controlling in the case at bar.
The prosecutor asserts that the State "will undertake to prove" that defendant was employed by the Audubon Mutual Housing Corporation and, as such employee, it was his duty to collect rents from the tenants each month; that it was his duty during each month to deposit the money he had collected in that month; that during each month (except during October 1957 and January 1958) he deposited an amount less than the total rents collected for those respective months and converted the remainder to his own use. Under these facts it is asserted that the State will undertake to prove the commission of a separate crime each month during the period, thus substantiating the charges contained in the indictment. It is further contended that the reason that R.S. 2:188-19 was not re-enacted was because the Supreme Court promulgated Rule 2:4-15, now R.R. 3:4-7. Said rule provides:
"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 ...