State v. SpenceState v. Spence
It appears to be acknowledged by all counsel that the indictment the validity of which we are requested to determine is unfashionably composed. Its informality in point of its questionable import and resultant legality has occasioned the submission to us of the several divergent aspects in which it may be perceived. We have given thoughtful consideration to all of the constructive advocacies that counsel have tossed into the judicial cauldron.
The indictment contains but one cоunt, the seventh paragraph of which constitutes the bone of contention. We quote it:
“7. That on or about the first day of August, 1952, and from thence continuously to and including the day of the taking of this inquisition, at the City of Jersey City, County of Hudson, and within the jurisdiction of this Court, the said DONALD SPENCE, CARROLL PERKINS, trading as Perkins Nursery, HENRY J. KNOLL, trading as Hollywood Florist, HERMAN R. ZINN, and MITTERMEYER NURSERY CORPORATION, all late of the City of Jersey City, County of Hudson aforesaid, did unlawfully, knowingly and corruptly conspire, combine, confederate and agree together, between and amongst themselves, as much as in them lay, to pervert and obstruct in the said City of Jersey City the due administration of the public bidding laws of the State of New Jersey, to wit,
We have italicized merely to indicate the sources from which the respective arguments arise. It is also feasible here to explain that the succeeding paragraphs, 8 to 68 inclusive, are devoted to the allegations of overt acts.
In response to the motions of counsel representing the defendants, the judge of the Hudson County Court concluded that the indictment alleged two separate unlawful conspiracies in the one count, the one to violate the public bidding laws of the State, and the other to cheat and defraud the City of Jersey City. He accordingly resolved that the indictment was duplicitous, not permissibly amendable, and
We initiate our examination of the structure of this indictment with a consciousness of the progressive elimination of those technical and artistic objections so cogently regarded in the days of the early common law, yet also with a predominant realization of the importance of a firm adherence to thоse basic and fundamental principles which safeguard the right of the accused adequately to be informed of the “nature and cause of the accusation.” Vide, State v. Winne, 12 N.J. 152 (1953); State v. Lefante, 12 N.J. 505 (1953); State v. Engels, 32 N.J. Super. 1, 6 (App. Div. 1954); State v. Hanly, 33 N.J. Super. 549 (Law Div. 1955).
Then, too, we assume that the judge perceived on the face of the indictment “the clearest and plainest” ground for concluding, as he did, that the indictment is “palpably defective.” State v. Davidson, 116 N.J.L. 325, 328 (Sup. Ct. 1936); State v. Weleck, 10 N.J. 355, 364 (1952); State v. Russo, 6 N.J. Super. 250, 254 (App. Div. 1950), certification denied 4 N.J. 456 (1950). Since the motion to dismiss was one аppropriately addressed to his judicial discretion, our appellate task is to determine whether in our opinion he mistakenly exercised it. In re Longo, 124 N.J.L. 176, 181 (E. & A. 1940); State v. Collins, 2 N.J. 406, 411 (1949); State v. Bunk, 4 N.J. 482, 485 (1950).
The sole reason announced by the court for the dismissal of the indictment is that it manifestly offends the rule forbidding the allegation of separate and distinct offenses in the one count of the indictment.
The associated ruling was that the duplicity was irreparable by means of amendment or excision. We pause to confess that we do not understand that the rule declaring that duplicity is positively fatal to an indictment has ever inhabited the procedural law of our State. Vide, State v. Lamb, 81 N.J.L. 234, 239 (Sup. Ct. 1911).
We differ, however, with the judge of the County Court in his determination that the indictment is conspicuously duplicitous. We recall the elucidative comments of Chief Justice
“* * * But the fundamental fallacy in the position on the part of the defence consists in this, that it confounds the crime, which is the conspiracy, with the objects of the conspiracy. A combination to commit several crimes is a single offense, and the offence can always be laid according to the truth. No matter how many violations of law may be concerted by the confederates, if the concert take place at one time, the crime is single. Therefore in this case, if it were the fact that these conspirators on a single occasion confederatеd to violate the law in question in two distinct particulars, with respect to such combination, the criminal act was a unit, and it appears as such on the face of this indictment.”
In State v. Profita, 114 N.J.L. 334, 338 (E. & A. 1935), Justice Case explained:
“* * * The crime of conspiracy is not to be confounded with the objects of the conspiracy. A combination to commit several crimes is a single offense. * * * We find that the indictment clearly charges an offensе, a single offense, namely, the crime of conspiracy, and that therefore one count was adequate and the count is not duplicitous * * *.”
See, also, State v. Continental Purchasing Co., Inc., 119 N.J.L. 257, 262 (Sup. Ct. 1938), affirmed 121 N.J.L. 76 (E. & A. 1938); Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), and annotation.
We are of the opinion that the interpretаtive import of this indictment is to allege the one conspiracy entered into by the defendants on the one date and place therein designated. An epitome of the charge is that thе unlawful objects of the confederation were to make extravagant purchases which required the expenditure of the funds of the city in excess of $1,000 without advertising for competitive bids as prescribed by law; have the vendors present bills to the governing body of the municipality for divisions of the total price in amounts less than $1,000; induce their payment and thus fraudulently advantage the vendors and сheat the city.
Where the several acts are component parts of the one conspiracy, the pleading is not vulnerable for duplicity. Farrell v. State, 54 N.J.L. 416 (Sup. Ct. 1892). Anent an indictment for malfeasance, State v. Bolitho, 103 N.J.L. 246 (Sup. Ct. 1927), affirmed 104 N.J.L. 446 (E. & A. 1927).
We have considered the signification of the indictment in its entirety. We сonclude that it is not palpably duplicitous and that the application to amend or delete from it the repetitious verbiage that has given it that complexion should be granted.
We may add that we have considered the other objections addressed to the legal sufficiency of the indictment and resolve them to be unimpressive.
Reversed.