71 N.J.L. 388 | N.J. | 1904
The opinion of the court was delivered by
The indictment in this case charged that the defendant Twining, as president, and the defendant Cornell, as treasurer, of the Monmouth Trust and Safe Deposit Company, executor of William Mills, being in possession and having under their care, custody and control certain money, goods, chattels, property, rights in action and other valuable securities and effects belonging to the estate of William Mills, deceased, and the persons in whose benefit and behalf the said Monmouth Trust and Safe Deposit Company had been appointed executor and trustee, with intent to convert to their own use and the uses and purposes of the Monmouth Trust and Safe Deposit Company, did willfully, unlawfully and fraudulently take and convert the said money, goods, chattels, property, rights in action and other valuable securities belonging to the estate of said William Mills and to the persons in whose benefit and'behalf the said Monmouth Trust and Safe Deposit Company had been appointed and was acting as executor and trustee, to their, said Albert C. Twining and David C. CornelFs, own use, and to the use and purposes of the said Monmouth Trust and Safe Deposit Company, the executor and trustee as aforesaid of William Mills, deceased.
The indictment fails to specify whether the property converted was money, chattels or dioses in action; it charges a conversion of all. It avers the property to have been in the “estate of William Mills” and the persons in whose benefit and behalf the trust company had been appointed executor, from which we infer that it was the property of the trust company, as executor of Mills. The property could not be in the estate of Mills and the persons beneficially interested in that estate, as the indictment avers. It charges a conversion to the use of the defendants and of the trust company as executor and trustee. These defects were so obvious that upon a motion to quash the Quarter Sessions amended the indictment so as to charge that the defendant Twining, as president, and Cornell, as treasurer, converted money belonging to the trust company, as executor and trustee, to their own use.
The only justification to' be found for this procedure is contained in section 44 of the Criminal Procedure act. Pamph. L. 1898, p. 881. This section provides that every objection to any indictment, for any defect of form or substance apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment before Hie jury shall be sworn, and not afterwards; and every court before which any such objection shall be taken for any such defect, or before whom any person may be tried, maj7, if it be thought necessary, cause the indictment to be forthwith amended in any particular.
This section was first introduced into our legislation by the revision of 1874. Rev., p. 277, § 53. It is probable that its object was to compel the defendant to raise objections apparent on the face of the indictment before the jury was sworn, and thus to avoid a reversal for' such defects after a trial had been had. The language is, however, broad enough to justify a construction which would permit any amendment in substance.
In State v. Kern, 22 Vroom 259, 264, the present Chancellor said, in reference to this section: “In view of the constitutional provision that no person shall be held to answer for a criminal offence unless on the presentment or indictment of a grand jury, the legislative grant was broader than it had a right to make,” and he referred, apparently with approval, to State v. Startup.
If the indictment in this case failed to set out any crime, the court, under these decisions, which we approve, was without power to amend it. The crime defined by the statute is the conversion of the property of the corporation to some use or purpose other than the use or purpose of the corporation. The charge in the indictment is the conversion of the property of the corporation, as executor, to the use of the defendants and the use and purpose of the corporation as executor. We find it difficult to understand what the pleader intended when he charged a conversion to the use both of the defendants and of the corporation; but whatever he intended, it is obvious that a conversion to the use of the corporation, as executor, conjointly with the use of the defendants, is not a conversion to a use other than the use of the corporation; for the corporation must still retain some
It is proper to add that this case does not involve an amendment of a variance under section 34 of the Criminal Procedure act. Pamph. L. 1898, p. 878. That section is applicable only upon the trial of the indictment where there is a variance between the statement of the indictment and the evidence offered in proof thereof. The amendment in this case was made upon a motion to quash, before any evidence had been offered.
The judgment must be reversed.