State v. Cooney

72 N.J.L. 76 | N.J. | 1905

The opinion of the court was delivered by

Dixon, J.

The first and second reasons above stated were not discussed, because counsel for defendant assumed that such discussion was foreclosed in this court by the decision in Hopper v. Stack, 40 Vroom 562. We therefore refrain from considering them.

Respecting the third reason, we think the averment of the indictment, that the primary election to which it refers was held under the act of April 14th, 1903, legally imports that it was held under that act as amended by the act of April 5th, 1904, such being the form of the statute when the election was held. Drew v. West Orange, 35 Vroom 481.

As to the fourth reason, the oath, under which the defendant is charged with false swearing, seems to have been authorized by section 75 of the Election law of April 4th, 1898 (Pamph L., p. 237), read in connection with section 13 of the supplement of April 14th, 1903, known as the Primary Election law. When the man giving his name as John Warner presented himself to vote at the primary election, his right to vote at the succeeding final election became at once a matter on which, under said section 75, the board of registry and election was empowered to examine any person under oath. The name and residence of the person claiming the right to vote were proper elements of such examination.

Under the fifth reason no defect was mentioned other than those specified in the fourth and sixth reasons.

As to the last reason, we think the failure of the grand jury to state the real name of the man who gave the name of John Warner is not a fatal defect. It certainly would not be necessary at the trial to prove his real name, and section 33 of our Criminal Procedure act (Pamph. L. 1898, ¶. 866) declares that “no indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved.” So that it is only essential on this point that, in the language of our constitution, the accused should be informed of the nature and cause of the accusation. For this purpose we consider the averments of the indictment adequate. The indictment sets forth circumstances by which the person intended may be as readily distinguished from others as if his name were given.

The motion to quash is denied.