80 N.J.L. 641 | N.J. | 1910
The opinion of the court was delivered by
This is a motion to quash an indictment brought here from the Mercer Oyer and Terminer by certiorari for that purpose. The first count in the indictment charges that upon a hearing had in a certain cause before Vice Chancellor Walker, sitting for the Chancellor, -the defendant, willfully contriving and intending to pervert and obstruct justice and the due administration of the law and to cause the said "Vice Chancellor wrongfully to give judgment, willfully and feloniously published a certain false, forged and counterfeit affidavit, and averred that the affidavit contained facts material to the issue being heard before the said Vice Chancellor. This count further charges that the affidavit purported to be that of Paulina Tatray (signed Polli Tratrai), and that it was certified by the defendant as a justice of the peace, that it had been sworn to by her before him, the defendant well knowing that it was signed, but that no oath had been administered to the affiant. The argument of the defendant in favor of a motion to quash this count is that it charges inconsistent offences—(a) publishing a false affidavit; (6) omitting to administer the oath. This argument has no merit. The offence charged is the obstruction of justice in publishing a false and counterfeit affidavit, counterfeit and false because it had not been sworn to, and therefore was not the affidavit or sworn statement of the affiant as it was represented to be, or, to put it another way, the obstruction of justice by offering to the Vice Chancellor as evidence a paper containing facts which the defendant represented had been verified by the oath of the affiant, when he knew that this was not true. It is also claimed that it was improperly called an affidavit in the
The second count charges that for the purpose of obstructing justice the defendant feloniously offered and used before the said Vice Chancellor the same oath, knowing it to be untrue. The objection which the defendant urges to this count is that it charges that the defendant used and offered for use a certain oath and deposition in certain chancery proceedings, well knowing it to be untrue, with intent to prejudice the complainant in the chancery proceedings, and to pervert justice and the administration of the law, without specifying in what particulars the oath or deposition is false, and in support of this claim cites Heintz v. Union Quarter Sessions, 16 Vroom 523. In that case the defendant was charged with the crime of perjury in swearing that certain persons named in the petition and recommendation for a license to keep an inn and tavern were all freeholders, and it was held that the indictment was defective because it did
The objections urged against the third and fourth counts are that the third count charges the forging, and the fourth count the uttering, of a false, forged counterfeit affidavit “being a record and authentic matter of a public nature,” while it is not alleged how the affidavit became a public record. The indictment charges that this affidavit Avas presented and read to the court in a proceeding in which the' matters set out in the affidavit were material to the issue, and the reading of an affidaAdt upon a rule to show cause why an injunction should not issue, as set out in the indictment, makes it a record and authentic matter of public' nature, and it is not, as urged by the defendant “valueless in a court of justice.” It at once becomes a record of the court and upon it is based the judgment of the court. This disposes of all the questions raised against the indictment, and the motion to quash is refused. The indictment will be returned to the Court of Oyer and Terminer of the county of Mercer, there to be proceeded with as if this writ of certiorari had not been allowed.