State v. DrakeState v. Drake
Defendant was granted leave to appeal from a County Court order denying his motion to dismiss four indictments returned against him by the Mercer County grand jury. R.R. 3:5-5(b) (6).
The indictments charge defendant with the violation of
Any person who, knowingly or designedly, with intent to cheat or defraud any other person, obtains any money, property, security, gain, benefit, advantage or other thing of value by means of false promises, statements, representations, tokens, writings or pretenses, is guilty of a misdemeanor.”
In existence at the time of the alleged offenses contained in the indictments was
“Penalties; investigating staff
(a) Whoever makes a false statement or representation knowing it to be false or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this chapter (
R.S. 43:21-1 et seq. ), or under an employment security law of any other State or of the Federal Government, either for himself or for any other person, shall be liable to a fine of $20.00 for each offense, to be recovered in an action at law in the name of the Division of Employment Security of the Department of Labor and Industry of the State of New Jersey or as provided in subsection (e) of section 43:21-14, said fine when recovered to be paid to the unemployment compensation auxiliary fund for the use of said fund; and each such false statement or representation or failure to disclose a material fact shall constitute a separate offense. Any penalties imposed by this subsection shall be in addition to those otherwise prescribed in this chapter (R.S. 43:21-1 et seq. ).”
In summary, the indictments allege that defendant, from 1958 through 1960, knowingly and with intent to cheat and defraud the State of New Jersey, obtained negotiable checks from it through the Division of Employment Security, by false statements, representations, writings and pretenses on various occasions and received in the aggregate the sum of $1,295, contrary to the provisions of
To obtain these benefits defendant fraudulently stated that he was unemployed and was not receiving any wages. In fact, Drake had been an employee of Schanck and Field, grain and straw processors, for 25 years. He also held the position of Clerk of Washington Township since 1933, and was a local zoning officer and building inspector. He received a salary from each position. When the indictments were returned by the grand jury on June 27, 1961, Drake was suspended from his duties as an employee of the local township.
We note preliminarily that
Assuming that
“Prior statutes relating to the same subject matter are to be compared with the new provision; and if possible by reasonable contruction, both are to be so construed that effect is given to every provision of each.”
Furthermore, if the Legislature, when it enacted
The question of whether the same offense may constitute a violation of two separate statutes has been resolved by our courts in favor of allowing the State to proceed under either statute, in the absence of a clear contrary legislative intent. For example, the court in State v. Reed, 34 N.J. 554 (1961), upheld a conviction for the unlawful possession of narcotics,
The determination in State v. Fary, 16 N.J. 317 (1954), is particularly apposite to the present appeal. In that case, defendant was indicted under
“By leaving both statutes on the books in the 1951 revision of Title 2 the Legislature clearly intended that the two offenses should remain, one as an indictable crime and the other as a disorderly persons offense. N.J.S. 2A:170-43 contains no express repealer of N.J.S. 2A:119-3, and clearly is not so repugnant to the latter statute as to be an implied repealer of it * * *. The fact that there is an area in which the two statutes overlap and prohibit the same act, as in this case, does not mean that the defendant can only be prosecuted under the statute providing for the lesser penalty * * *.” Ibid., 16 N.J., at p. 323.
Similarly, in the present case there is no express repealer nor are the two statutes repugnant or contradictory.
It is significant that defendant in the present case was indicted under
The parties have cited several authorities from other jurisdictions dealing with the question of whether a prosecution under a more stringent criminal provision is precluded by the penalty provision of the relevant Unemployment Compensation Act. Although they concern different statutes than those involved in the present case, a brief examination of these authorities is instructive.
The decision in Commonwealth v. Wright, 69 Pa. Dist. & Co. R. 418 (O. & T. 1949), upheld an indictment for violation of the penal code for obtaining property by false pretenses.
In People v. Licausi, 23 Misc.2d 75, 200 N.Y.S.2d 582 (Cty Ct. 1960), defendant was indicted for the felony of fraudulently presenting claims to public officers for payment while representing that he was unemployed. Defendant argued that he should be entitled to a misdemeanor charge under the New York Unemployment Act. This contention was summarily rejected. The court commented that “the State may proceed under a general statute even though a more specific one is available.” (200 N.Y.S.2d, at p. 585.)
The only authority cited to us, holding that a penalty provided in an unemployment statute precludes prosecution under the terms of a more general criminal law, is People v. Haydon, 106 Cal. App.2d 105, 234 P.2d 720 (Cal. D. Ct. App. 1951). There, defendant was convicted for willfully making a false claim to a state board with intent to defraud. In reversing this conviction the court was guided by a special statutory provision that “when a general and [a] particular provision are inconsistent, the latter is paramount to the former.”
Affirmed.