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August 29, 1963

Application of Frederick W. BOYER for Issuance of a writ of habeas corpus

The opinion of the court was delivered by: MADDEN

Petitioner, Frederick W. Boyer files application for the issuance of a writ of habeas corpus under 28 U.S.C.A. § 2241 and 2243, and in conjunction therewith, an application for the appointment of counsel and leave of court to proceed in forma pauperis under 28 U.S.C.A. § 1915.

The applications are unusually complete and explicit and this Court feels the allegations and averments contained therein set forth accurately and in pertinent detail the substantial facts upon which the petitioner relies. It appears from the allegations of the petition that petitioner has fully exhausted his state remedies and is appropriately before this Court. Further, a careful examination leads the Court to conclude that the issues presented are solely issues of law which the Court is able to determine in the first instance upon a consideration of the merits and that a hearing would not develop additional material facts helpful to the petitioner.

The petitioner is an inmate of the New Jersey State Prison at Trenton, New Jersey, presently serving a term sentence of imprisonment of seven to ten years. The sentence was imposed by the Camden County Court upon his conviction by a jury on April 8, 1959, under Indictment 183-58 wherein he was charged with the crime of robbery. *fn1" It is solely with respect to his conviction under Indictment 183-58 that the petitioner alleges he was denied due process and equal protection of law under the Fourteenth Amendment of the Constitution of the United States and seeks the issuance of the 'Great Writ'.

 Specifically, the petitioner urges that Indictment 183-58 charging him with robbery was fatally defective in substance and that when the trial court permitted the indictment to be amended during the trial he was deprived of his constitutional right to indictment by a grand jury. The petitioner also alleges he was denied the right to a full appellate review of his conviction on this issue on direct appeal and that he was denied the issuance of a writ of habeas corpus by the State Courts without the benefit of a hearing on his application therefor.

 Indictment 183-58 contained two counts. The first count which the petitioner alleges was fatally defective was returned by the Camden County Grand Jury in the following form:

 'The Grand Jury of the State of New Jersey for the County of Camden upon their oaths, present that Fred Boyer on the 8th day of September, 1958 in the City of Camden in the County of Camden aforesaid, and within the Jurisdiction of this Court, did forcibly take from the person of Edward Schrot, a clerk of the New Jersey Water Company, 27th & Westfield Ave., City of Camden, New Jersey, by violence and putting the said Edward Schrot in fear, contrary to the provisions of N.J.S. 2A:141-1, and against the peace of this State, the government and dignity of the same.'

 The second count charged the petitioner with committing the robbery while armed, in violation of N.J.S.A. 2A:151-5.

 There is convincing authority to warrant the denial of the petitioner's applications, for, unquestionably, said applications constitute a collateral attack upon the indictment on which he was tried, convicted, and sentenced. *fn2" Nevertheless, this Court will consider the merit of the petitioner's applications since the petitioner has placed in issue the trial court's jurisdiction. However, the burden is on the petitioner, and in order to sustain his applications it must clearly appear that the trial and sentencing court lacked jurisdiction. *fn3" The sole question to be determined herein is not whether the trial and sentencing court committed an error of law while acting within its jurisdiction or whether the indictment would have been vulnerable to direct attack, but rather, whether the indictment was fatally defective so that it could not be amended and consequently deprived the trial and sentencing court of jurisdiction. *fn4"

 The indictment under consideration charged or attempted to charge the offense of robbery defined in N.J.S.A. 2A:141-1. The offense is a crime within the general criminal jurisdiction of the trial and sentencing court. The offense is neither colorless nor an impossible one under the law. It was sufficient to give the trial and sentencing court jurisdiction of the subject matter and of the person of the petitioner. If the petitioner or his counsel had raised the question of the alleged defect before or during the trial, certainly the trial court would have had the power to pass upon such a question, for the trial court has jurisdiction to determine the sufficiency 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 ...

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