*1 JERSEY, PLAINTIFF-APPELLANT, THE STATE OF NEW COHEN, HAROLD DEFENDANT-RESPONDENT.
Argued January 25, 7, Decided March1960.
(1) *3 Mr. Vincent P. Monmouth Keuper, County Prosecutor, the argued cause for the plaintiff-appellant.
Mr. Bdelstein Benjamin the cause for the argued defendant- Edelsiein, cG respondent Bdelstein (Messrs. Mr. attorneys; Bdelstein, Benjamin counsel). of The of the court was opinion delivered Bttklin'G, Defendant was J. indicted Monmouth Grand for County Jury misconduct office committed while was a of he officer of police City Asbury Park. Two defendant, indictments were returned one against charging as him the sole accused and the other him and charging as another officer co-defendants. Motions to police dismiss indictments filed and both were defendant denied by the Court, Monmouth The County Superior Court. Appellate Division, appeal orders, from these upon granting reversed the trial court and dismissed the indictments as to defendant. J. The 56 N. 509 Div. Super. (App. 1959). appellant re- this to court to certification review the grant dis- quested insofar as related to the which missal it indictment charged J. alone, N. defendant which was petition granted. (1959).
The is in subject indictment of this appeal which five counts. In have been each, the defendant is to аlleged a of the duly City and officer appointed police authorized of The Park at the time occurrences Asbury alleged. of the first willfully count that “did and charges the defendant and in violation his as officer unlawfully police ** * and to inform, sajr” and confess evilly corruptly defendant, a named that had police he, purchased officer a boat $500 with stolen from the money city’s parking as meters, that he stolen from the meters much parking had fear as in a was in and on one occasion single day $200 and with that sum on his that being apprehended рerson, he had stolen $30,000. money been able to accumulate count states that defend- meters. second parking ant of his duty and and in violation “willfully unlawfully take a set of as a officer” to police attempted keys official, city saying meters from desk parking act who came him in this upon another officer police I office City Manager’s open get “if can find The third set of I would be in.” count keys, charges those and in violation “willfully unlawfully that defendant * **(cid:127) evilly as officer and corruptly meter collector solicit” named special did divide with defend- booty from the meters and to to steal of the third count repeats portion ant. The fourth count above, attempting then defendant charges quoted *4 meter collector a named special persuade and to coin boxes place steal from the meters to of unnamed officers which police in the automobile meters he was the collector while servicing driven past would be unnamed and, officers would in exchange, the meters while he made his the meter collector rounds. following cease of the сount, portion third repeating after The fifth that defendant above, suggested charges count quoted he steal that from the repairman meter a named parking so, collections should de- that, meters and if he do fendant knew who would convert the stolen coins person into paper currency. trial court refused dismiss of the any portion indictment,
above Divi Court, but the Superior Appellate reversed this entire in sion, determination and ordered the dismissed, dictment an indictment that holding charging official misconduct must contain the or duties duty allegedly viоlated in bjr the accused and that the indictment * * * revealed “a failure patent prescribed to allege ** *.” duties of office violated In defendant’s allegedly in issue, addition to this the defendant contends that dictment fails to him there are, with crime. There charge first, fore, two for determination: our questions presented an whether indictment for official misconduct must state the detail than duties violated prescribed greater allegedly the instant indictment’s the acts complained that his as a of were done defendant “in violation of duty officer”; sеcond, any whether the indictment of its counts a crime defendant. charges against
The indictment states that the defendant violated merely as a acts. Defend police officer certain specified ant asserts that this fails to describe with sufficient language duties the violation of which particularity prescribed forms the basis of the crime him. Fre charged against for official set forth specific indictments misconduct quently See, defendant. e. g., duties violated State allegedly Castle, L. 187 1907). v. 75 N. J. Ct. Defendant (Sup. this is in conformance derives his argument praсtice Weleck, rule of law from J. mandatory State N. where it was said that 355 (1952), * * * “It is essential indictment misconduct allege prescribed office both a of the office and facts consti- tuting a breach thereof.” case, In that it was that an indictment for official argued cite the source of misconduct was defective failing *5 duties violated. After the statement allegedly making quoted above, the states: opinion prescribed nothing duties of an nor less than “The office are more may on the duties cast law the incumbent the office. Duties imposed ways: be on the of an office in several law holder they may prescribed by special law, (1) private or such be some * * * township provision as official action of a committee or * * * they may municipal (2) imposed of a charter be * i! * general Legislature they may (3) act arise out of the ** very of the nature of the office itself *. In those instances prescribed by special law, where the the duties are some duties, indictment duties must show the source of the but where the imposed by general very are or arise out of nature of statute the office, alleged an of the be indictment source need not * * judicial duties, the courts will take such notice (Emphasis J., page supplied) 10 N. at 366. defendant that refers to phrase the italicized argues themselves,
source of the the duties prescribed duties, not believe, and hence is not inconsistent with his We position. however, the rationale of rule stated above in Welech that as and that applies the duties well as their sources in the from Welech emphasized phrase above question express of this rule. recognition
After “an fоr mis- the statement indictment making conduct in office both a prescribed duty allege [must] thereof,” the office the Welech and facts breach constituting the indict- opinion states that “the defendant contends that ment here Then discussion is deficient both respects.” that an in- continues with a consideration of the necessity dictment cite the source of the concludes notice of judicial the statement that “the courts will take of the office such duties” where arose out of the nature they There in the Welech or a statute. is no general inconsistency case, and the reason for the confusion between apparent that, purposes allegation duties their sources misconduct, the and their in an for official duties indictment as is no one, are and there requirement source considered violated duties of the office be expounded allegedly *6 in detail unless the source of the duties must be cited in the Winne, indictment. In State v. 12 152, N. J. 179 (1953) a similar problem to that raised here was considered, con- which it was said: cerning argues alleges merely “The defendant that each count naked con vague duty proper, a
clusions of and broad to use ‘all reasonable suppress particular and effective means all lawful means’ to a gambling house, vague duty as well as a and indefinite breach of in ‘unlawfully wilfully neglect the defendant did and omit perform neglect, the said duties’ and ‘did fail and omit to proper, reasonable, diligent use and exercise’ all for ‘the effective and means detection, arrest, indictment and conviction’ of those main taining each duty such house. We have said that where the arose special private from some law the indictment must reveal the source, duty imposed by general but where the was statute or unnecessary the nature of the office it was since the court will take to set forth the source judicial notice of the duties. State v. Weleck, supra. language 2:182-5, Each count uses the of R. S. supra, charging duty ‘detection, arrest, defendant with the gambling indictment and conviction’ of violators of the laws. When county prosecutor prescribed by defendant’s duties as are general statute, unnecessary plead duty it is the source of the judiсial for the courts will take notice of them. It tvhen special they dtities arise under a pleaded, law that must he Weleck, v. supra.” State (1952), 10 N. J. 355 The reason for the rule is found in the requirement the indictment Schmid, crime, State v. 57 N. J. L. 625 (Sup. Ct. 1895), and where the duty rests in common law or on a general statute, statement of facts constituting a breach of that sufficient to make the offense judicially apparent, which is the fundamental to purpose wards which the form of the indictment is directed. Cf. Lombardo, State v. 20 N. 317, J. Super. 324 Div. (App. 1952). Just as the source of the prescribed duty existing in the common law or general statute may be judicially noticed, so also may from such arising sources be noticed. similarly And it is from the common law that we derive the duties primary attached to the position of Donovan, officer. v. State 132 J.N. L. 319 Ct. (Sup. 1945); State v. McFeely, J. L. 102 N. Ct. (Sup. 1947). Witte, 598, 13 N. J. (1953)
As stated in State is sufficient if it afford of the accusation “the specification defense and provide the accused the means of preparing convict or acquit, the basis for the plea autrefois autrefois same offense.” for the event of a further prosecutiоn notice provides above that judicial And we have indicated duties ascertain the means which this court will has been a crime' violated, to determine whether allegedly served, there No would be purpose substantial charged. to set forth fore, question the indictment by requiring reasons involved. Eor these duties of the office the prescribed to the of indictment and turn we sustain the form *7 a crime. of the indictment charges whether the substance of dismissed on the ground The first count must be e., a crime. In defendant, i. failing charge by urged Weleck, 355, 365 this court quoted 10 N. J. (1952), State Burdick, from Law definition following with approval the 272, : Grime p. (1946) § of * * * misconduct,’ office, means in or ‘official “Misconduct by any an officer official duties unlawful behavior in relation to justice, any way of law and with the administration intrusted any or, defined, of a of or omission in breach as otherwise act accepted public concern, has office.” one who while defendant, The that the first count merely charges he had stolen officer, declared that with another conversing The con- receipts. the meter money parking from city’s of a conspiracy was not as being part versation charged an attempted bribery a in furtherance of solicitation all that can be gathered other From purpose. illegal accused of indictment, merely is being the defendant the sub- If crime indicated by the statement. making an in- such the conversation were being charged, stance of But in its present be sustained. dictment could no doubt of breach any does not accuse defendant form the indictment his public virtue of owed the first count other crime. Consequently status or of any must be dismissed. In
The secоnd count also must fall. it defendant from the office of with obtain charged attempting official the which meter coin city keys operate defendant was discovered boxes. The count that specifies “in main office of the Hall of the City City Asbury official in Park, outside the office door of” whose just city were and that upon office the keys kept, being that “if I can find that discovered defendant stated office a set of those I would keys, City Manager’s open get be in.” Defendant is not accused of acts carried out to The allow him to entrance to the gain keys’ storage place. silent in this detail. Hor does it count is conspicuously where defendant was discovered was that appear place is an not a for him to be. All that remains place proper to remove the keys desire on defendant’s expressed part in order Without such intent money. more, to steal sufficient to constitute crime. third, however, are counts, fourth and fifth counts, As in case of the first and second
sustained. the last three counts of the indict defendant argues in office and ment fail to the crime of misconduct at most indicate that misconduct has they him crimes any specific occurred but fail to accuse conclusion, this how involved. We possibly disagree third, fourth and fifth counts do ever, and hold that *8 with the crime of misconduct in office. the defendant charge use all A officer has the to reason recognized duty police jurisdiction, enforce the laws in his applicable able means to 136 N. J. L. McFeely, and to violators. State apprehend v. State, 7 N. Misc. 102 Ct. Henderson v. J. 1947); (Sup. It would seem to be another 1929). 520 Ct. (Sup. behind this to state that duty manifestation оf the principle solicit, on officers not to in further it is incumbent police motive, others to commit ance of an evil or crimes. corrupt counts, the defendant is In the third and fourth charged meter meter collectors to steal receipts with soliciting parking with defendant. The fifth and share the count proceeds to defendant with meter charges encouraging repair man to steal meter for his own benefit. A receipts police officer must not himself violate the laws he is sworn to Sheridan, enforce in his v. McCain applicable jurisdictiоn, cf. 174, 923, 160 Cal. 2d 324 P. 2d Ct. App. (Dist. App. and such an officer is under a 1958), responsible criminally commits, of misconduct in officewhen either he himself or he commit, solicits others to the crimes which defendant the meter collectors and attempted persuade repairman acts, conclusion, to execute. carried to a would be Such se, criminal and we clear incumbent on per perceive officer not to act in such a manner. Consequently we sustain the last three counts of the indictment in question.
For the reasons we sustain the form of the in- foregoing dictment defendant with in office misconduct charging third, fourth and fifth counts thereof. We dismiss, however, indictment, the first and second counts of that but we add there is time J. might ample S. (N. 2A:159-3) re-present subject matter the dismissed remaining counts to the Grand for consideration as to whether a Jury substantive crime was committed. Court, of the Superior judgment Appellate Division, reversed, as indictment, modified, is returned to trial court for further proceedings. Weleck, C. In J. State (concurring).
Wbinteato, 355, 10 N. J. the court (1952), quoted approval Burdick, definition from 1 Law Grime following 272, 387-88: (1946), § pp. office,’ “By misсonduct,’ ‘misconduct in or ‘official is not meant misconduct, otherwise, person which criminal is committed happens public officer, who to be but which connected with not his official duties. Such conduct is sometimes called mis- * * * distinguish conduct it from official misconduct. misconduct,’ office, means, therefore, any in or ‘official Misconduct unlawful behavior relation to official duties an officer intrusted any way justice, or, with the administration of law and as other- defined, any wise act omission breach of a con- cern, by accepted public one who has office.” *9 the difference Burdick illustrates reference At the cited way: misconduct in this and official between voluntarily instance, may, public drunk become “A official any duties, interfering way and in official with his its without may guilty misconduct.’ Should not be of ‘official such a case he duties, neglect drunkenness, however, in- his him cause guilty clearly them, capacitate performing of he would be him from official misconduct.” However, Weleck went above, I have no quarrel. With the J., : 369) on to N. at say page (10 * “* * duty imposed by public law If under no officer were prin- rеgulate basic moral his official conduct accordance with ciples, principles immune from such and still be then he could violate recognize prosecution in office. We indictment and for misconduct public no such of morals of office.” divorce from the duties This law for which constitutes innovation in the criminal an indictment will I can find no if means that support it lie for does not constitute “immoral” behavior even it though aof the failure perform improper performance or the so reads of office. The specific duty prosecutor apparently that thesis. upon Weleck and seeks to sustain the indictment But immorality. Heedless to I do not admire say, else. criminality something immorality equation that, More than Men not what is immoral. upon may agree worthy immorality divide what opinions may upon leaves wisely The State liability. hand of criminal heavy censure. Eew contempt much to the sanction of private into criminal way Ten found their Commandments is guilty law. I could not agree father, his mother or in office if he fails to honor crime house, wife, vain, name of or covets the or takes the God or labors on the else that is his neighbor’s, anything whether as some find must. they Sabbath judges within as criminal falls solely shall be denounced immorality of the social the spokesman of the Legislature, the province law is no place judicial ingenuity conscience. Criminal criminal if declared it Legislature invention. And *10 12
for a public officer to do or “immoral” the say anything statute would hold a of which the Con- tyranny vagueness stitutions of I the State and Nation forbid. think it equally crime, clear that the a common-law cannot Judiciary uphold if one can found, be which thus the taste depends upon the individual or judge juror.
The first did count of the indictment defendant charges inform, and confess and to another “evilly corruptly say” $30,000 officer that he police had stolen parking meters. This count could not be sustained if it were read to charge that defendant committed a fresh the act of con- crime of another offense. With this the fessing guilt prosecutor If this count it would agrees. confession, charges false raise the whether is a false official and it report could be deemed a criminal breach of offiсial But duty. theme, disclaims prosecutor that for he does not intend the “confession” was Thus prove untrue. the thesis be- comes that it is behavior for to tell a poor policeman crime, brother officer that he has been whether the guilty tale be trite false. That such behavior one aspect doubt, another is I unworthy of do not and policeman, Cohen, he well be removed from In re 56 may office. See N. J. Div. certif. denied 31 N. J. Super. (App. 1959), But I in its conclusion (1960). join majority that a “confession” does not constitute a failure to perform or of a of the office of improper performance policeman. The second count is of the same It stamp. de- alleges “did fendant and obtain of a attempt get possession set for the meters from the office of keys parking City to another that “If policeman I can Manager,” saying find that office a set of City Manager’s open those get in,” I would be as the keys, indictment that meaning, says, he could then have access to meters and easy purloin their The does not seek to sustain prosecutor contents. this as a count Rather he charge attempted larceny. advances thesis that the declaration of an evil purpose despicable and, in a interpretation under the of Weleclc to policeman above, which I alluded is immoral behavior punishable office is criminally. removal from Again, quite appropriate, but I with the do agree not allegations majority nonfeasance, constitute misfeasance or malfeasance of a of office. specific duty find the three counts do majority remaining
crime of “misconduct officе.” These counts allege in violation of his as a officer defendant evilly solicited other named two described corruptly persons, as special officers meter collectors and as a the third *11 meter to repairman, steal from moneys meters.
The common-law nonfeasance, offenses of misfeasance and malfeasance relate to the of the duties discharge specific attached a office, to office. A of public duty within scope offenses, of those is of not some proper general obligation decorum. Eor a must example, policeman obey departmental rules and of it that character but I take that he regulations would not be indictable for if he crime smoked a cigarette or failed to Rather, button his coat. to which these duty common-law pertain nature, crimes is affirmative duty, for the of performance which the office was created. public In the case a policeman, of for the duty of performance which his office was is constituted the enforcement of the penal laws, of prevention violations and the detec- including tion and arrеst of offenders. He is indictable for nonfeasance, if, misfeasance or malfeasance with the criminal requisite mind, he fails perform to or improperly performs that public duty.
All have the persons to the law. More ac- “duty” obey no curatety, there is but rather a to “duty” punish- liability ment. officer is Every of course thus amenable in his citizen, of capacity private but he does not necessarily commit two crimes a act merely because he also single happens to be a public official. a
What then is of if he liability policemаn himself violates If his a the law? act would be crime when com- another, mitted he of course is a indictable as private act, citizen. If thus when his committed by criminal citizen, of his does relate performance to the to coin as, if a detailed office, example, policeman of while performing collection should those pilfer very moneys nonfeasance at least of role, his official he would be guilty turn in. to his to collect and them with respect specific duty commission of be other situations in which the may There a criminal dеre- involves simultaneously non-official crime of an affirmative liction with to respect performance academic, That to remain likely largely office. offense it is more to indict for basic sensible plainly nonfeasance, follow misfeasance than to the tortuous path for a office. would be pointless prose- malfeasance in It connection cutor to assume the added burden proving be seek unless his should to purpose with official duty, which act, objective for a punishment single multiple invite to the with respect wоuld attention guarantees n and due of law. double jeopardy process I cannot that a policeman guilty But agree common-law crime reason of infraction of every is not prevent laws. A penal appointed offenses, nor to detect and arrest committing himself is so deal Rather his role with others. official himself. It too attenuated and unrealistic thought is much *12 view, his own In the common sense my man be policeman. evident. would be of the situation makes this It startling a exceeds to for crime officer who the speed indict closе to a It would absurd hydrant. limit or too be parks a for to find him of still second crime to guilty failing e., himself, to a a i. himself ticket to make give detect e., offense, i. a his full confession of traffic report, perhaps for failure crime, a third his to himself with charge still in to that he had failed nonfeasance to confess failing report do not a vehicle violation. I see how line could his motor such if it were a be drawn short of absurdities held that has prevent the to himself public duly policeman law and to own the detect infractions. violating nor member of the сourt has un- any Ueither counsel an indictment at common precedent support covered law the thesis discussed above. That circumstance upon As have creation suggests said, I the of criminal caution. is The liability Legisla- function. singularly legislative ture has not an denounced such conduct as official crime. We are asked to find it was law so at common regarded and so remains under catch-all of 7V7 the <778. provision 2A :85-l which as a an “of constitutes misdemeanor offense an law, indictable nature common at not otherwise for exрressly provided statute.” We should not sustain an indictment thereunder unless we are satisfied thoroughly that criminal existed at common law. liability Especially is in true the us, situation before which full the reach of the can concept scarcely be foreseen and in which the public interest protected prosecution of the amply private as a offender. as I holds majority opinion, read that even less it, than I what have lia- discussed above suffices for criminal bility. say I this the opinion because does not find that the solicitation would itself crime if mаde aby be citizen. The theory be that appears policeman, being with charged law, enforcement violates that if he solicits a criminal violation this without (and regard even a connection the of the officer's performance If specific detail the beat). thesis the same good, for official crime should exist if liability policeman solicits person’s offense, violation, or traffic or an disorderly infrac- tion of a local ordinance. It should clearly be understood that we are not of a discussing as liability policemаn abettor, aider and ease the offense present solicited was not committed solicited. No party supports criminal misconduct authority liability office in these If circumstances. interest requires sanctions, criminal we should leave the matter to the Legis- lature which could define and offense limit within the of reasonableness. range I am satisfied last three counts do not
Although .nonfeasance, crime of misfeasance or malfeasance official *13 16 each I am satisfied office, equally affirmative wit, of solici- crime,
does
the common-law crime
tation, in
of N.
phrase
violation of
same catch-all
J. 8.
2A :85-l
the essential facts
above. Each alleges
quoted
larceny.
solicitation
commit
I would uphold
constituting
on
basis
the irrelevant
these counts
and treat
allegation
official status as surplusage.
of defendant’s
are
that solicitation
substantially agreed
authorities
was
at common law.
felony
to commit
indictable
See
Blechman,
99,
v.
135 N.
L.
101
1946);
J.
Ct.
(Sup.
State
120,
Quinlan,
v.
86 N.
125
1914),
J. L.
(Sup.
State
Ct.
affirmed
below 87
L. 333
& 1915);
on
N. J.
A.
opinion
(E.
L.
v.
86 N. J.
79
Ct.
affirmed
75,
1914),
State
Boyd,
(Sup.
& A.
(E.
1915);
87
J. L. 328
Rex v.
opinion
on
below N.
5, 102
269
East.
B.
Higgins,
Eng.
(K.
1801);
2
State
Rep.
Bеckwith,
423,
135 Me.
For affirmance—Fone.