For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
[34 NJ Page 181] Defendant appeals from a conviction by the Union County Court of having violated N.J.S.A. 39:4-82 (failure to keep to the right) upon an appeal from a conviction by the Municipal Court of Berkeley Heights of having violated N.J.S.A. 39:4-97 (careless driving). This court certified the appeal upon its own motion before argument in the Appellate Division.
On January 17, 1960 defendant, while operating a motor vehicle in the Township of Berkeley Heights, was stopped and given a summons and complaint in the form of a uniform traffic tricket; Local Criminal Court Form No. 12 (deleted September 30, 1960). A cross was marked in ink on the face of the ticket by the arresting officer after the printed words "careless driving" and the words "crossing white line" inserted in a blank space reserved for a more specific designation of the offense.
After hearing, defendant was convicted in the municipal court of violating N.J.S.A. 39:4-97, which provides:
"A person who drives a vehicle on a highway carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving."
Defendant thereupon appealed to the County Court.
Prior to the commencement of the trial de novo in the County Court the prosecutor and the deputy attorney general moved for an amendment of the original complaint, to charge the defendant with a violation of N.J.S.A. 39:4-82. The amendment was allowed and defendant was tried and convicted of violating N.J.S.A. 39:4-82, which reads:
"Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive it on the right half of the roadway. He shall drive a vehicle as closely as possible to the right-hand edge or curb of the roadway, unless it is impracticable to travel on that side of the roadway, and except when overtaking and passing another vehicle subject to the provisions of sections 39:4-84 and 39:4-85 of this Title. As amended L. 1951, c. 23, p. 81, § 43."
Defendant argues that the judgment of conviction should be reversed since N.J.S.A. 39:4-97 does not contain a sufficient standard of conduct and hence violates both Amendment XIV, Section 1 of the U.S. Constitution and Article 1, Section 1 of the N.J. Constitution. Alternatively, he argues that in the event N.J.S.A. 39:4-97 is declared
to be constitutional, the said conviction of violating N.J.S.A. 39:4-82 should be reversed and the matter remanded for a trial by the County Court on the original complaint of having violated N.J.S.A. 39:4-97 for the reasons that (1) the County Court erred on the trial de novo in considering the synopsis of testimony contained in the return of the magistrate who heard the case on the original charge, and (2) the conviction on the amended complaint placed him twice in jeopardy for the same offense.
As noted above, prior to the hearing before the County Court the complaint was amended so that the charge of having violated N.J.S.A. 39:4-97 (careless driving) was eliminated and the charge of having violated N.J.S.A. 39:4-82 (failure to keep to the right) was substituted therefor. It is admitted that both charges arose out of the same factual setting.
R.R. 3:10-10(b) furnishes the authority for the substitution of the new charge. It provides:
"(b) The appeal shall operate as a waiver of all defects in the record, including any defect in, or the absence of any process or charge laid in the complaint, and as a consent that the court may, during or before the hearing of the appeal, amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the ...