Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant was convicted upon an indictment which charged that he "did willfully and maliciously set fire to and burn certain shops and buildings situate and commonly known as 5616-18-20 Bergenline Avenue, * * * West New York * * *." He appeals.
His first point is that the trial court should have granted his motion to dismiss the indictment on the ground that "it
is fatally defective and [in?] that it utilizes a single count for the purpose of joining separate and distinct offenses of a like nature." In short, defendant contends that the indictment was fatally duplications.
To begin with, if the indictment were duplicitous it would ordinarily be ground for the striking of one of the crimes from it, but not for its dismissal. State v. Weleck , 10 N.J. 355, 375 (1952); State v. Torrance , 41 N.J. Super. 445, 453 (App. Div. 1956), certif. denied 23 N.J. 59 (1956). Cf. State v. Gleitsmann , 54 N.J. Super. 355 (App. Div. 1959). However, defendant claims this indictment is incurably defective because it joined in one count willful and malicious burning, and setting fire with intent to burn, which defendant contends are two separate and distinct crimes, citing State v. Quatro , 31 N.J. Super. 51 (App. Div. 1954).
State v. Quatro did not deal with an indictment which charged both crimes but with one which failed to charge either crime. We did not deal there with the question whether the two crimes may be charged in one count. We hold that when both crimes relate to the same fire (as they did here) they may be joined in one count.
When they relate to the same fire, the willful and malicious setting of the fire with intent to burn is a preliminary to the willful and malicious burning. Even crimes which are by definition separate may be joined in a single count when they are component parts of a single offense. "If the several acts set forth enter into and constitute the principal offense, there is no duplicity." Farrell v. State , 54 N.J.L. 416, 419 (Sup. Ct. 1892); O'Regan and Schlosser, New Jersey Criminal Practice § 195 (1950). Cf. State v. Price , 11 N.J.L. 203, 215 (Sup. Ct. 1830); State v. Hill , 73 N.J.L. 77, 78 (Sup. Ct. 1906); State v. Bove , 98 N.J.L. 350, 353 (Sup. Ct. 1922), aff'd. o.b. 98 N.J.L. 576 (E. & A. 1923).
It is true that in Quatro we pointed out that prior to the adoption of N.J.S. 2A:89-2 the two crimes were set forth in separate sections of the statutes. However, today they are in the one section, and when "a statute makes it a crime to
do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count." State v. Hill, supra; State v. Bove, supra; State v. Price, supra; O'Regan and Schlosser, New Jersey Criminal Practice § 193.
Furthermore, as defendant points out, the indictment in the case at bar did not adequately charge the defendant with willfully and maliciously setting fire to the buildings with intent to burn, because the words "intent to burn" were omitted. State v. Quatro, supra. However, since that is so, there is no duplicity in the count. "* * * [I]f a count charge two or more offenses, yet but one of them sufficiently, it is not double. 1 Bish. New Crim. Pro. , § 440." State v. Middlesex & Somerset Traction Co. , 67 N.J.L. 14, 16 (Sup. Ct. 1901).
The case was presented on the theory that defendant had burned the described property. The words "set fire to and" were, at most, surplusage, and it is not suggested by defendant that he was ...