State v. Dudley, 97 A. 772

The opinion of the court was delivered by

Swayze, J.

The indictment charges that the defendant counseled and procured Schaeffer to disobey a subpoena to testify before a Vice Chancellor. ' The proof at the trial showed that all Dudley's acts were committed outside of Hudson county. There was therefore a clear ‍​​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌​​​​‌​​​​‌‌‌​‌​‌​​​​​‌‌‌​‍failure to prove that the crime of counseling and procuring the commission of a misdemeanor took place within the jurisdiction of the court. The state reсognizes this difficulty and strives to sustain the indictment upon the theory that the facts set forth show that Dudley рarticipated in Schaeffer’s alleged offence, and that since it was a misdemeanor only, Dudley’s participation made him a principal and liable to indictment in Hudson county, although he committed no act therein. The indictment does not in so many words charge pаrticipation by Dudley as a definite crime, other than that of counseling and procuring Schаeffer. If it is to be sustained at all, it must be because the facts averred show the commission of the crime, and make unnecessary the express averment of the particular crimе. To sustain the indictment on this ground, we must find in it a statement of facts which would constitute a crime by Schаeffer; for if he is not shown to have committed the crime in Hudson county, Dudley cannot be held to have committed one there. We need notice but one of the many defects mentiоned in the defendant’s brief. It is not averred that a witness fee was paid to Schaeffer. That is nеcessary to compel the attendance of a witness in a civil suit. The indictment avers only that Schaeffer ‍​​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌​​​​‌​​​​‌‌‌​‌​‌​​​​​‌‌‌​‍had been “duly and legally served” with the subpoena. To constitute due and legal service, different sums are required by law to be paid; sometimes fifty cents, if the witness resides in thе county, sometimes more if he be a non-resident. What sum, if any, was paid Schaeffer? Was he a resident of Hudson county or a non-resident? Was he a resident of New Jersey or some other state ? If the latter, how and where was service made? Was it in Hudson county or in the state of Sсhaeffer’s residence? We cannot tell from the indictment whether the facts were such that the service was due and legal. We have the opinion of the grand jury that it was, but that is a mere legal conclusion. “Good-pleading,” said Chief Justice Beasley, “requires that such facts shall be stated, so that the court may be enabled to see that if their truth be admitted, the defendant is conclusively guilty of the crime charged.” We have nothing to add by way of reasoning to what hе says with his usual clearness and force in the opinion from which we quote State v. Maires, 33 N. J. L. 142, 145. It may be well to point out that the ‍​​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌​​​​‌​​​​‌‌‌​‌​‌​​​​​‌‌‌​‍question in this particular case is important because the facts as proved raise the very interesting question whether a resident of another state temporarily present in or passing through New Jersey can be-served with a subpoena and paid a. witness fee of fifty cents, and be thereby compelled to leave his own affairs, perhaps in а distant state, ■to attend court here? The question is novel in our state and would require most cаreful consideration before we would venture to pronounce an opinion. Yet if wе should eventually hold such a service good, we should not think that one who in another state had advised the witness that he was not bound to attend had necessarily been guilty of a crime in New Jеrsey. Surely a resident of another state who .is served with a subpoena while temporarily in New Jersey and paid a witness fee of fifty cents only, ‍​​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌​​​​‌​​​​‌‌‌​‌​‌​​​​​‌‌‌​‍as if he were a resident of the county in whiсh he is subpoenaed to appear, may consult counsel as to his obligation to attend, and counsel would not be a criminal if he erred in his advice on a question of novelty and nicety. On the other hand, if the witness was a resident of the county where he was to attend and was paid the regular fee, it would be impossible to avoid the conclusion that counsel who advised him to disobey was interfering with the administration of justice and committing a contempt of court. The difference between the two cases is enough to show the necessity of stating thе facts instead of the mere legal conclusion that service was due and legal, cеrtainly in a case where the crime is not charged in so many words but is to be inferred from the faсts set forth in the indictment.

Since the proof showed that the crime of counseling and procuring was not committed in Hudson county and the indictment fails to charge any other crime, ‍​​​​​‌‌​​‌‌​‌‌​‌‌​​‌​​‌​​​​‌​​​​‌‌‌​‌​‌​​​​​‌‌‌​‍the defendant was entitled to a verdict that he was not guilty as charged. The judgment must be reversed and the record remitted for a new trial.

Case Details

Case Name: State v. Dudley

Court Name: Supreme Court of New Jersey

Date Published: Jun 6, 1916

Citations: 97 A. 772; 4 Gummere 42; 89 N.J.L. 42; 1916 N.J. Sup. Ct. LEXIS 67

Court Abbreviation: N.J.