of an indictment. It appears that the indictment was merely defective by omission in the statement of the offense, accordingly, the construction to be placed on it and its sufficiency rests primarily in the trial court. The omission in the indictment of which the petitioner complains did not, in the opinion of this Court, deprive the trial court of jurisdiction.
The amendment permitted by the trial court in this instance did not charge another or different offense; it did not change the nature or degree of the offense; and the amendment did not prejudice the petitioner in his defense on the merits. The defense under the original indictment was equally available to the petitioner under the amended indictment, as was the evidence in support of such defense. Had a judgment been rendered on the original indictment, the judgment would have been a bar to a new indictment drawn in the form to which the original indictment was changed by the amendment. The omission or alleged defect therefore appears to be one of form and not of substance. Under such circumstances, it is entirely within the power and discretion of the trial court to permit an amendment to an indictment for an error of form in the manner of describing the offense intended to be charged. R.R. 3:4-5 of the New Jersey Rules of Criminal Practice.
Furthermore, the petitioner had privately engaged defense counsel to represent him. Defense counsel possessed considerable experience in the trial of criminal cases and was of exceptional ability. The court is personally aware of counsel's competency and outstanding qualifications in the representation of criminal defendants, and feels certain that if the petitioner was in any manner prejudiced by the alleged defect in the indictment or the amendment, counsel would have made this fact known to the trial court.
Certainly, the petitioner and defense counsel were aware of the charge they had to meet, for the offense was set forth in the pleaded statute, N.J.S.A. 2A:141-1, and it was referred to not only in the opening of the State's case but also in the preliminary proceedings. At no time, either before or during trial was any attempt made to question the alleged defect by the acceptable procedures available for such purpose.
Inasmuch as the defense relied upon by the petitioner was that of alibi, as indicated by defense counsel in his opening to the jury, the petitioner can hardly urge he was misled, charged with an offense for which he was not prepared to meet, or prejudiced in his defense upon the merits. The amendment had no pertinency to the defense of the petitioner.
As to the petitioner's alleged denial of his right to a full appellate review on this issue on direct appeal and the denial of his application for habeas corpus without the granting of a hearing, such contentions are without merit or cause for consideration. First, appellate review of a final judgment by a state court, in a criminal matter, is not a necessary element of due process of law and may be granted upon such terms as the State deems proper. Moreover, the issue raised here was considered by the State Appellate Court and denied for lack of merit. Secondly, it is also proper for the state court to deny an application for a writ of habeas corpus without a hearing where it appears that the applicant is not entitled to the same.
The Court is of the opinion that the petitioner herein has not been denied any of his constitutional rights as alleged and that he has had his day in court, in both the trial and appellate courts.
In light of the foregoing, the petitioner's applications are denied.
It is on this 29th day of August, 1963, ordered that the within applications be and are hereby denied.