State v. LombardoState v. Lombardo
The present appeal prosecuted by leave of this court pursuant to
The indictment designated No. 985-51 embodying seven counts purports to charge the commission by the defendant of the crime of false swearing in violation of
Applications wеre addressed to the County Court for the dismissal of each of the three indictments grounded predominantly upon the contention that each is too deficient in its allegations to charge the commission of a crime. The motions were denied by an order of the court made on March 27, 1952, 18 N.J. Super. 511 (Cty. Ct. 1952), the propriety of which we are requested by counsel for the defendant and for the State to determine.
In the environment of the early common law the validity of an indictment was considered inter alia in respect to its strict conformity with the establishеd accuracy and
However progressively liberal has become the legislative and judicial attitude toward the literal composition of indictments (see
The omission of an essеntial element cannot be supplied by inference or implication. State v. De Vita, 6 N.J. Super. 344 (App. Div. 1950); State v. Lustig, 13 N.J. Super. 149 (App. Div. 1951).
In the interest of expedition in the disposition of these interlocutory matters we will express our cоnclusions with an economy of comment.
The statute relating to false swearing read as follows:
“Any person, his procurers, aiders and abettors, who shall willfully swear falsely in any judicial proceeding, or who shall willfully swear falsely before any person authorized by virtue of any provision of law of this state to administer an oath and acting within his authority, shall be guilty of false swearing.”
R.S. 2:157-4 .“False swearing is hereby constituted a misdemeanor.”
R.S. 2:157-7 . (Present counterpart,N.J.S. 2A:131-4 .)
It is immediately noticed and with clear reason that the statutory offense only envelops a person “who shall willfully
Counts 1, 2, 3, and 4 of indictment No. 985-51 do not charge the defendant with having willfully swore fаlsely or with having done so intentionally and with knowledge of the falsity and therefore none of them will afford the basis of a valid conviction.
Contrast indictments in State v. Ellenstein, 121 N.J.L. 304, 321 (Sup. Ct. 1938); State v. Harris, 132 N.J.L. 54 (Sup. Ct. 1944), affirmed 132 N.J.L. 343 (E. & A. 1945); State v. Kowalczyk, supra.
It is observed that it is alleged in counts 5, 6, and 7, that the defendant “did then and there willfully swear falsely” in the particulars stated. It is nevertheless asserted by counsel for the defendant that the allegation of willfulness is misplaced in these counts of the indictment in that it should have followed and not preceded the recital of the testimony claimed to have been false. We do not perceive any substantiаl merit in that point, although to have repeated the prefatory allegation in association with the narration of the specific deeds would be in conformity with the prеcedents. Vide, Commonwealth v. Haynes, 2 Gray 72 (Mass. Sup. Jud. Ct. 1854). Since those counts are legitimately unobjectionable, the denial of the motion to dismiss the indictment was proper. State v. Hickman, 8 N.J.L. 299 (Sup. Ct. 1826); State v. Norton, 23 N.J.L. 33, 48 (Sup. Ct. 1850); State v. Startup, 39 N.J.L. 423 (Sup. Ct. 1877); Henderson v. State, 7 N.J. Misc. 520 (Sup. Ct. 1929).
It is proposed on behalf of the defendant that the indictmеnt is patently incomplete in that it does not embody any specific factual allegation of the delegation of the care and control of the jail and prisonеrs by the sheriff to the defendant. That attack upon the indictment seems to us to ignore the realization that an undersheriff, duly appointed, is deemed, as the title of the office indicates, to be a general deputy who is empowered to act for and on behalf of the sheriff in the exercise of the latter‘s official powers, and the undersheriff in exеrcising those powers and the related duties is under no less responsibility than the sheriff himself. The fact is that the delegation of authority inheres in the appointment and the obligations descend where, as here alleged, the performance of the particular official duties was actually pursued.
Indictment No. 991-51 charges that the defendant and other оfficers entered into a conspiracy “to disregard the duties imposed by law” pertaining to the confinement of the inmates serving sentences in the jail and “to misadminister” the jail, thаt is, to manage and conduct the jail wrongly.
The final criticism directed against all of the indictments is that the words “a true bill” are not present in the endorsement above the signature of the foreman of the grand jury. Each indictment appears to have been “signed by the prosecuting attorney” and benеath the single word “endorsed” appears the signature of the foreman. The use of the terse expression “a true bill” in the form of the authentication of an indictment by the foreman of the grand jury has been in conformity with the conventional course of practice over a span of many years, and we do not perceive any cogent rеason for the abandonment of the customary mode of identification and authentication. Indeed, it may be supposed that in the promulgation of
However, Chief Justice Beasley explained in State v. Magrath, 44 N.J.L. 227 (Sup. Ct. 1882) why an indictment will not be quashed merely because it is not endorsed аs a “true bill.” Cf. State v. Shutts, 69 N.J.L. 206, 209 (Sup. Ct. 1903); State v. Unsworth, 85 N.J.L. 237 (E. & A. 1913); State v. McFeeley, 134 N.J.L. 463 (Sup. Ct. 1946). The pertinent provision in
Also encompassed by the present appeal is an order of the County Court directing that a struck jury be impanelled for the trial of the conspiracy indictment. Counsel for this defendant impugns the jurisdiction of the trial court to order a struck jury for the trial of a defendant for conspiracy. The point is untenable. Vide,
The orders under review are affirmed with the expression of our views concerning counts 1, 2, 3, and 4 of indictment No. 985-51.