85 N.J.L. 237 | N.J. | 1913
The opinion of the court was delivered by
The opinion of the Supreme Court is based upon the view that the date of finding the indictment appears on its face from the file mark of the clerk thereon; that the objection that the statute of limitations had barred the prosecution was, therefore, one of those objections that under our statute must be taken by demurrer or motion to quash before the jury is sworn and not afterwards. We cannot agree to the fundamental assumption on which the opinion rests. We think the objections referred to in the statute, as apparent on the face of the indictment, are those .that appear upon the indictment as it is found by the grand jury, and not those that may be made apparent by some subsequent act of a clerical officer. It has been held that even the caption is no part of the indictment — State v. Jones, 4 Halst. 357 (at p. 365) — because it is not presented by, and does not receive the sanction of, the grand jury, nor the signature of their foreman, but is merely a history of the proceedings previous to the finding of the indictment. So the file mark is in no way presented to or authenticated by the grand jury, but is a mere endorsement made after the indictment is presented to the court. The indictment is complete without it, and becomes effective when handed to the court. State v. Magrath, 15
Although we think no amendment was necessary and that the amendment ordered was permissible to supply the defect, in the averments as to time, the question still remains of the substantial rights of the defendants, for if in fact it had appeared that the prosecution was barred by the statute, this failure of the defendants to make timely objection would not have availed the state to secure a conviction. Not only must the pleadings be right, but the proof must suffice to warrant conviction. The plea of the statute of limitations is available
In an indictment for conspiracy under a statute like ours which makes an overt act necessary to complete the offence, it .is enough if there is one overt act within two years. United States v. Kissel, 218 U. S. 601; Jones v. United States, 162 Fed. Rep. 417; 212 U. S. 576; Wilson v. United States, 190 Fed. Rep. 427; 220 U. S. 614. Such an act was proved in this case.
The remaining questions relate for the most part to rulings on evidence. It was proper to exclude the entries in Rightmeyer’s field book. He could not thus make evidence for himself. Counsel now argues that it was admissible as a memorandum, the accuracy of which he testified to, and that it was no more than reading the memorandum from the witness-stand would have been. The difficulty is that counsel did not offer it in that aspect; he said he offered it for corroboration, and that it was evidential to show what was done. In this contention he was wrong and he may not now. vindicate the offer upon a ground inconsistent with that stated to the trial judge.
It was proper to allow Parker to testify that he had properly performed his contract. It was only his opinion to be sure, but it was admissible since one important fact for the state to show was that the money was due. Parker’s evidence as to what Unsworth said about Enderlin and Rightmeyer would have been inadmissible but for the prima facie evidence of a conspiracy to which all were parties; under the circumstances it was admissible.
There was no error in charging that the jury might convict though no money was paid by Parker. The point made is that the payment of the money was the only overt act within two years. This is not the fact. There was a certificate given in November, 1909.
The other errors assigned require no further remark.
The case of Enderlin differs from the others, and his counsel argue strenuously that the evidence was not enough to
The judgment must be affirmed.
For affirmance — The Chancellor, Swayze, Trenchard, Parker, Minturn, Vredenburgh, Congdon, Terhune, Heppenheimer, JJ.. 9.
For reversal — None.