Lora, Seidman and Antell.
[152 NJSuper Page 463] Defendant and one Eugene R. Powell were indicted for (1) setting fire to a barn (N.J.S.A. 2A:89-2),
and (2) conspiring to burn the barn (N.J.S.A. 2A:98-1). Tried alone to a jury (Powell having previously pleaded guilty to the first count), defendant was found guilty of both offenses and sentenced for burning the building to a 364-day term in the Burlington County Jail, with six months to be served in custody and the remainder suspended, to be followed by a probationary term of two years. He was also ordered to make restitution in the amount of $500. On the conspiracy count, defendant received a suspended, concurrent 364-day jail term. This appeal followed.
The contentions are that (1) the conspiracy conviction must be reversed because the indictment failed to allege the commission of an overt act in furtherance of the conspiracy, and the jury was erroneously charged that an overt act was not necessary to prove the crime charged (not raised below); (2) the trial judge erroneously charged the jury "concerning the capability [ sic ] of one who consents to the burning of a building" (not raised below); (3) the prosecutor's cross-examination of defendant implied to the jury that he had committed a similar crime in the past, and (4) the entire trial "was so infected with error as to mandate a finding that the defendant did not receive a fair trial" (not raised below).
During the night of July 9, 1974 a barn on a small farm in Southampton Township, Burlington County, was destroyed by fire. It is not disputed that defendant and two companions were present at the time. The controversy at the trial was over defendant's involvement in the incident.
The State's proofs established that defendant, Powell and a juvenile had been riding around in Powell's car for several hours on the night in question. During that time they imbibed a considerable quantity of beer. According to the juvenile, who testified for the State, they came to a stop at one point and someone in the car brought up the idea and "we figured we would burn down a barn or something like that." The juvenile, who was "pretty intoxicated," got out of the car, picked up some hay in the field, carried it
to the barn and started to light it. The three then drove away. He could not recall whether defendant ever discussed setting fire to the barn and he denied seeing defendant place hay or anything else against the barn and setting it on fire.
Powell, also called as a State's witness, related that the subject of fires arose as they were driving about and that defendant mentioned an old barn. When they reached the location "we all got out of the car and got bales of hay and put it around there and lit it on fire."
A police officer testified that after being apprehended defendant gave a statement in which he said that the subject of setting a fire came up as they were driving around and that his companions got bales of hay and "started kicking it all over by the barn and they started setting the matches."
Testifying in his own behalf, defendant admitted that the subject of fires was discussed. He said that they stopped at the farm where the barn was located in order to "go to the bathroom." They walked up the road to the barn, where his companions put hay around the barn and set it on fire. He said that he "hollered" for them to get back to the car. He denied agreeing to set the fire or telling them that he would help the others do so.
We consider first defendant's argument respecting the conspiracy indictment. We are satisfied that the indictment was fatally defective and the conviction of that offense cannot stand. There is no merit in the State's contention that, since the indictment was not challenged prior to trial, defendant is barred from raising the issue at this time. The defense that an indictment fails to charge an offense may be raised on appeal. R. 3:10-3. In any event, we deem the matter of sufficient magnitude to notice it, if ...