For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Hall. For reversal -- Justice Schettino. Weintraub, C.J. (concurring). Schettino, J. (dissenting). Weintraub, C.J., concurring in result.
The order appealed from is affirmed for the reasons stated by Judge Conford for the majority of the Appellate Division. The opinion is reported in 54 N.J. Super. 170 (App. Div. 1959).
For purposes of emphasis, we consider it advisable to add our unqualified approval to the observation in the opinion that the defendant is entitled to a bill of particulars. Moreover, it seems probable that if the charge had been made more specific by that means, no appeal would have been allowed from the interlocutory order denying the motion to dismiss the indictment.
Even though an indictment sets forth in general terms sufficient facts to meet the requirement for a statement of the essential elements of the offense and so cannot be dismissed on motion, a defendant is entitled as of right to a more particular specification if on a fair appraisal he may be unprepared for or surprised by the inculpatory proof at the trial. Cf. State v. Jenkins, 136 N.J.L. 112 (Sup. Ct. 1947), error dismissed 137 N.J.L. 209 (E. & A. 1948); State v. Bove, 98 N.J.L. 350 (Sup. Ct. 1922), affirmed 98 N.J.L. 576 (E. & A. 1923). He is entitled to be furnished with information as to the specific nature of the offense charged with such clarity that he can prepare for trial without fear of surprise. The liberty and reputation of a defendant are in jeopardy and he should be given every reasonable opportunity and facility within the rules for the preparation of his defense. This does not mean that the State must disclose in detail the proof it expects to offer at the trial to establish guilt. But it does signify that the particular transactions which the prosecution asserts constituted misconduct in office should be revealed to him. And the need for such information obviously is more pressing in situations where much of the factual data is in books and records in the possession of the State. Singer v. United States, 58 F.2d 74 (3 Cir. 1932).
WEINTRAUB, C.J. (concurring).
A criminal charge must sufficiently identify the criminal event to enable the accused to defend and to defeat a subsequent prosecution for the same offense. These essentials are not the distinctive incidents of the right to indictment. They are required as well of accusations, informations or any other mode of charging an offense, and this because of the demands of due process of law and the constitutional guaranty against multiple exposure for the same offense. The requirement peculiar to the constitutional right to indictment is that a grand jury must find probable cause before a man is brought to trial for a crime, and accordingly that the indictment shall
be sufficiently specific to preclude the substitution and trial of an offense the grand jury did not in fact find. State v. Sullivan, 33 N.J. Super. 138, 142 (App. Div. 1954); State v. DeVita, 6 N.J. Super. 344, 347 (App. Div. 1950); Linden Park Blood Horse Association v. State, 55 N.J.L. 557, 558 (E. & A. 1893); 1 Chitty, Criminal Law (3 d Am. ed. 1836), at p. *169. If an indictment is so phrased that the criminal event cannot be identified, it will not be aided by a bill of particulars, and this for the reason that only a grand jury may initiate a prosecution for the crime.
The difficult question is whether the indictment here is sufficiently definitive to assure against the trial of a crime the grand jury did not find. To determine if this is so, the common law crimes subsumed popularly under the generic head of misconduct in office must be understood in the aspect pertinent to that inquiry. There is no such offense as official misconduct in general any more than there is a crime of larceny in general. Both are crimes only with relation to specific situations. An indictment for larceny must identify the specific event. So also must an indictment for misconduct in office. As Chief Justice Case expressed it in State v. Jenkins, 136 N.J.L. 112, 113 (Sup. Ct. 1947), writ of error dismissed 137 N.J.L. 209 (E. & A. 1948):
"Misconduct of that nature necessarily consists of a particular incident or of a series of particular incidents. It is not just an attitude. It is action; or it is non-action with respect to specific incidents. There is not a failure to raid a pool room unless a particular pool room exists, not a failure to lay complaints unless there are particular persons against whom complaints should be laid, and not a failure to seize gambling equipment unless there are particular items of equipment in existence intended for or used for the unlawful purpose. There can be no conviction on such a charge unless the particular incident or a multiplicity of such incidents is proved. A defendant is unable to plead or to prepare a defense against such proofs unless he knows in advance the particular offense or offenses counted upon; not merely the general definition of the crime, either in the words of the statute or according to the common law, but such details of the act or omission as will enable him to know precisely what accusation is laid against him and to prepare his case with fore-knowledge of what he will be called upon to meet." ( Emphasis added.)
Thus an indictment for misconduct must not only indicate the duty of office offended but must identify the acts or omissions which the grand jury found to breach that duty. There may be a continuous breach of duty constituting but a single offense, as for example if a policeman over a period of time fails to suppress a known gambling operation. If a police officer continuously fails to suppress five different gambling operations at five different places, there are five offenses. If the five are lumped together in a single count with whatever the required specificity, the issue would only be one of misjoinder, and that issue would present none of the constitutional problems with which we are presently concerned. But as I understand the constitutional guaranty of indictment, there would be a denial of that right if the indictment merely alleged a continuous breach of duty to suppress gambling without specifying the places or activities as to which the failure occurred. See Linden Park Blood Horse Association v. State, supra. I suppose there could be a charge that the officer adopted a policy of disregarding his duty to enforce the gambling laws, and if such were the charge, the specific failures ...