State v. Lehigh Valley Railroad

The opinion of tire court was delivered by Parker, J. The plaintiff in error was indicted’for manslaughter. The indictment wasi brought into tire Supreme Court by certiorari, and on a motion to quash made in that court, was upheld. State v. Lehigh Valley Railroad Co., 90 N. J. L. 372. The case went back for trial, and after a nolle pros, as to other defendants impleaded, the plaintiff in error entered a plea of nolo contendere. On motion for sentence, defendant’s counsel moved in arrest of judgment, which motion was denied and sentence was imposed, consisting of a fine. On error the Supreme Court affirmed the judgment (92 Id. 261), and its judgment is now brought 'here for review. We conclude that the judgment should be affirmed, and, so far as relates’ to the form of the indictment as covering an accusation of involuntary manslaughter and the criminal liability of a corporation aggregate for such an offence, we adopt the views expressed by the Supreme Court on the motion to quash. On the motion in arrest, the additional ground was argued that inasmuch as the state by court order had furnished a bill of particulars, which bill exhibited a case which, as plaintiff in error claims, is within section 7 of chapter 342 (Pamph. L. 1911), relating to the transport of explosives, that that statute is exclusive, and that in consequence an indictment for manslaughter will not lie. The Supreme Court disposed of this (92 N. J. L. 262 et seq.) by saying that if the objection be considered as one apparent on the face of the indictment, it came too late on a motion in arrest of judgment under the rule in State v. Alderman, 81 Id. 549; and if, as that court con [173] sidered, it was not apparent on the face of the indictment because the bill of particulars was no part of the recox*d, the point was unavailable on a motion in arrest of judgment. Without going into the first ground taken by the Supreme Court, we are content to rest our affirmance of this judgment on the second. Counsel property concede that a motion in arrest of judgment can be made only for some cause apparent on the recox’d. Powe v. State, 48 N. J. L. 34, cited by the court below; State v. Hop, 90 Id. 390. lienee, as the facts bringing the case within the act of 1911 appear not in the indictment itself, but only in the bill of particulars, counsel ax*e perforce driven to the position that such bill is part of the recoi’d. We are unable to give our assent to this, and all the reliable authority seems to he the other way. In Com. v. Davis, 11 Pick. 432, 434, 435, Chief Justice Shaw said that “the bill of particulars affects the proof and the mode of trial only, and not the indictment; it is no part of the recoi'd; it is not open to demixiuer. Tt is not a matter of technical nicety; and it is to- guard against surprise ón the tria,l, under the regulation of the court.” And, again, on page 435 : “It is no part of the record, it would not appear in the judgment, or in any respect change its character or effects.” Later, in Com. v. Smiling, 15 Id. 321, lie examined the subject more particularly, noting the importance and increasing xxse of bills of particulars in cases hot-li civil axxd criminal, where the pleadings are general in form. The present case is in that class by express provision of statute. Criminal Procedure act, section 36, Comp. Slat., p. 1832. In Dunlop v. United States, 165 U. S. 486, 490, an indietxxxent for sending obscene matter through, the mails, it urns alleged for error that the court had overruled a motion requiring the government attorney to file the alleged obscene matter “for the purpose of enabling defendant to demur to the indictment.” The court said: “If it had been furnished, it would not have been the subject of demurrer, since it is no part of the record,” citing Com. v. Davis, supra, and adding: “If the indictmeiit be not demurrable upoxx its face, it would not become so by the addition of a bill of particulars.” [174] In Jules v. State (Md.), 36 Atl. Rep. 1027, 1029, defendant undertook to demur to a bill of particulars and the court held this could not be done, quoting Whart. Cr. Pl., § 702; The ©ame rule, with citation of other cases, will be found in 1 Bish. New Cr. Pro., § 644, and 22 Cyc. 372, especially note 24. A similar rule prevails in civil cases, as, indeed, it should. State Street Church v. Gordon, 31 N. J. L. 264. The subject is adverted to in Watkins v. Cope, 84 Id. 143, 147, and State v. Pennsylvania Railroad Co., Id. 550, 553. The theory of ordering particulars is to limit the proof to matters specified in the bill of particulars and to enable the other party to meet his opponent’s proof without danger of surprise. Consequently, such bills have relation to the trial and not to the record. It follows that when the present defendant pleaded non vult it pleaded to an indictment for manslaughter generally and not to a statement of facts designed to limit the i proof thereunder to acts of negligence in transporting explo- , sives. This makes it unnecessary to consider whether the act of 1911 is exclusive, as claimed, and no opinion on that point is intimated. The case of State v. Mowser, 92 N. J. L. 474, is not at variance with the foregoing views. In that case the court, on the application of defendant, ordered a bill of particular's, which was dealt with; not as impugning or qualifying the legal sufficiency of the indictment as charging a crime, but as limiting the state to proof of a homicide legally identified with a robbery of which he had aireadjr been convicted. Similarly, in this case, if defendant instead of pleading non vult had gone to trial, held the state’s proof down to the bill of particulars, and then moved an acquittal on the ground that the facts, if proved, did not constitute the crime of manslaughter but a statutory offence under tire act of 1911, and a refusal of such acquittal had been brought here, the point attempted to be argued would be before us. But the plea; entered was in legal intendment to the indictment and not to the bill of particulars, which, as we have already said, was no part of the record. The judgment will be affirmed.