[153 NJSuper Page 66] The testimony of Duane Hemmings before the Union County grand jury appears to establish that on January 25, 1977 he was the victim of a robbery during which approximately $1.75 was taken from him by two persons, one of whom allegedly possessed a knife. Hemmings represented to the grand jury that after the robbery he identified a person at police headquarters as one of two persons who had robbed him. The following are pertinent questions directed to Hemmings before the grand jury and his responses:
Q. Now, did you have occasion to see the person later?
A. Only in police headquarters. I had to say it was him or not.
Q. Was one of the persons who had did this to you a Michael Tillison? [Emphasis supplied].
A. I guess so. If that's his name, I don't know him.
Q. But the people at police headquarters were the two persons who had done it to you?
An indictment was returned against Michael Gillison , charging him with violation of N.J.S.A. 2A:141-1 (robbery), N.J.S.A. 2A:119-1 (larceny), N.J.S.A. 2A:151-5 (while armed), and N.J.S.A. 2A:151-41(c) (possession of a weapon).
Defendant brings this motion to dismiss the indictment pursuant to R. 3:10-1 and R. 3:10-2, asserting that the evidence before the grand jury was insufficient to establish that defendant, Michael Gillison, was identified by the victim as being the same person named in the indictment.
The issue presented to the court, therefore, is whether the grand jury actually indicted defendant, Michael Gillison. In support of his motion to dismiss the indictment, defendant contends that the indictment does not refer to himself, but rather refers to a different person, namely one Michael Tillison. "To adequately present the State's case," defendant argues, "some evidence [before the grand jury] identifying the defendant as the person identified as the perpetrator was essential. Without such evidence, the Grand Jury could have determined that a crime was committed but could not properly determine against whom an indictment should be returned."
The question presented here is what is the necessary process for the determination of a specifically identifiable person as the one accused. Judge Learned Hand has stated:
Identity is ordinarily proved prima facie by similarity of name, though that may be answered by showing that there are two persons of the same name. When the ...