State v. LombardoState v. Lombardo
The defendant, Dominick Lombardo, moves to dismiss three indictments returned by the Camden County grand jury. The indictments are Nos. 985, 986 and 991. The defendant first attacks the indictments on the ground that they are not certified as “true bills” by the foreman of the grand jury.
Rule 2:4-11 provides in part as follows:
“The indictment or accusation shall be a written statement of the essential facts constituting the offense charged. It shall bе signed by the prosecuting attorney. The indictment shall be endorsed by the foreman.”
It will be noted that the rule does require an endorsement, but there is no requirement in the rule that the indictment shall contain the words “A True Bill“; nor is there anything in the rule that renders the indictment fatally defective without such certification.
Manifestly the purpose and reason for the endorsement and the signature of the foreman is to identify the indictment and to demonstrate the fact that it is the act of the grand jury.
It may be pointed out that prior to the new rules of criminal procedure such certification by the foreman was not a neсessary prerequisite to the validity of an indictment.
In the case of the State v. Magrath, 44 N.J.L. 227 (Sup. Ct. 1882), Justice Beasley reviewed the entire subject concerning the necessary formal requisites of an indictment, and concluded that it is not necessary to the validity of an indictment that it be certified as a “true bill.” It was not even necessary under the aforementioned case for the foreman to sign the indictment, although Justice Beasley acknowlеdges that the American authorities were in conflict upon this subject and felt that his determination was best sustained by reason, and as well sustained by authority.
The endorsements as appear on each indictment are sufficient to identify the indictments and there is a sufficient compliance with the provisions of Rule 2:4-11.
It is difficult to perceive any more sufficient endorsement than the method employed by the foreman of the grand jury with respect to the indictments under consideration.
Defendant urges that indictment No. 985, which charges the defendant with false swearing, contrary to provisions of
“Where a person has made contrary statements on his oath or oaths administered within the provisions of this article, it shall not
be necessary to allege in an indictment or allegation which statement is false but it shall be sufficient to set forth the contradictory statements and allege in the alternative that one or the other is false. Proof that both such statements were made under oath duly administered shall be prima facie evidеnce that one or the other is false; and if the jury are satisfied from all the evidence beyond a reasonable doubt that one or the other is false and that such false statement was willful, whether the same was made in any judicial proceeding or before a person authorized to administer an oath and acting within his authority, it shall be sufficient for a conviction.”
Counts 1, 2, 3 and 4 of this indictment are framеd by setting forth contradictory statements made by the defendant under oath and charge in the alternative that one or the other was false. The offense charged in each count, and the manner of pleading it, are concededly within the provisions of
The defendant in each of these counts is charged with the single offense of false swearing, and he is informed of precisely what he is to meet. The counts charge the defendant in the manner as provided for in the statute, that is, by setting forth the contradictory statements and charging that one or the other, without speсifying which, is false. But the statute further provides that the jury shall be satisfied beyond a reasonable doubt that one or the other is false, and that such false statement was willful, in order to justify a conviction. The Legislature has set forth what shall constitute evidence of the commission thereof and the test in this regard is whether or not the Legislature, in setting forth what evidence shall constitute proof of the crime, has set up a reasonable standard.
It is sufficient if the indictment makes it judicially apparent that a crime was committed. Haase v. State, 53 N.J.L. 34, 20 A. 751 (Sup. Ct. 1890); State v. Ellenstein, 121 N.J.L. 304, 2 A.2d 454 (Sup. Ct. 1938).
Under the statute under consideration, where two contradictory statements are made, it is an irresistible conclusion that one of them must be false, and the defendant was so charged. To justify a conviction the jury must be satisfied from all the evidence, beyond a reasonable doubt, that one or the other was false, and that such statement was made willfully. It is true that the essence of the crime, and proof thereof, is willfully testifying to two contradictory statements, one of which must be false. It is essential to the proof of the crime, as charged in the indictment, that he falsely swore to two contradictory statements, and if he did not swear to both, or if the jury is satisfied that one was not willful, then he must be acquitted. If they are contradictory then, by necessity, one is false, but the defendant can successfully defend by saying that they are not contradictory, or that he did not so testify, or that either of the statements was not willfully made. The gravamen in the charge is false swearing. Surely the Legislature may designate what evidence shall constitute proof of the elements of the crime, and under
If it be that the statute designates the legal effect to flow from the proof of the contradictory statements, there is a
Counts 5, 6 and 7 of the same indictment charges defendant did willfully swear falsely, with a recital of the false swearing, in violation of
“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.”
The defendant further contends that although the word “willful” is used in the body of the indictment, it should have been contained at the end of each statement concerning which he is charged with false swearing.
In each of these counts there is a recital of the investigаtion of the grand jury, that the defendant was duly sworn by the foreman of the grand jury to tell the truth, and then he is charged he did willfully swear false in substance and in fact, that he had never received any moneys from John and Pauline Caruso between the 17th day of May, 1951, and the 1st day of July, 1951, when, in fact, he had so received money from John and Pauline Caruso between the 17th day of May, 1951, and the 1st day of July, 1951. Counsel for defendant contends thеre is no recital of what is alleged to be the true fact. Attention may be called to count 6 of the indictment wherein it is charged that the defendant did then and there willfully swear falsely in substance and in fact that he did not know that a prisoner, Rocky Catalano, had
The gravamen of the charge is that of willful false swearing under oath. The indictment sufficiently identifies the proceedings under which the statement was made and the person before whom it was made; it sufficiently shows that the defendant was sworn, that the person administering the oath was duly authorized to act within his authority, on what date and at what place the statement was made, the willful and false swearing under oath of the substance and fact of such swearing, together with statements negativing the truth of such swearing. It is not necessary to the validity of the indictment to repeat the word “willfully” after each statement. It is sufficient if the count read as a whole clearly demonstrates that the crime is judicially apparent. Therefore all of the counts in the indictment, I find are sufficient and allege a crime in language substantially in conformity with the provisions of
Objection is made to indictment No. 986 in that the indictment does not state facts sufficient to constitute a crime, and also that the sheriff alone is responsible for the conduct of the county jail.
The defendant was the undersheriff of the County of Camden, and as such was an officer and employee of the county, and, as chargеd in the indictment, was charged with the proper governance, control and management of the Camden County jail, and with the direction and control of all officers therein; that he was charged with the public duty of keeping persons committed to the jail confined in the jail. This indictment enumerates nine specific instances of misconduct in office.
Surely it cannot be argued that the undersheriff was nоt a public official of the County of Camden. A reading of the indictment clearly and sufficiently charges that the defendant, as an officer and public official, was charged with the
Mоst of the criticism expressed is that the sheriff is solely responsible for the operation and control of the jail, but counsel fails to observe in the indictment that it is charged and alleged that the defendant, as undersheriff, was charged with the conduct and management of the jail. It is argued that if the sheriff delegated this authority to the defendant, the indictment should have so charged as a fact in the indictment. Thе indictment definitely and clearly charges that the defendant as the undersheriff had control and management of the county jail; delegation of the authority would be a matter of proof at the trial.
The duty of the sheriff‘s office — this includes the undersheriff — to operate and maintain thе county jail in an efficient and orderly manner, is generally known and accepted. And it is contended that the duties of an undersheriff are imposed upon him by the common law, the source of which need not be pleaded in the indictment but is properly a matter of proof. By statute,
It is the duty of the sheriff or his undersheriff to keep or maintain prisoners committed to their custody. See State v. Brown, 126 Pac. 245 (Crim. Ct. Apps. Okla. 1912); State v. Cyrus, 97 S.E. 412 (Super. Ct. Apps. W. Va. 1918). And it is well recognized and generally accepted that the undersheriff has the same duties and authority with respect to the ordinary duties of the sheriff as the sheriff himself. In Allen v. Smith, 12 N.J.L. 159 (Sup. Ct. 1831), our court dealing with a civil problem stated that a deputy or undersheriff by virtue of his appointment has authority to execute all the duties of the office of the sheriff.
The defendant cites the cases beginning with State v. Middlesex and Somerset Traction Company, 67 N.J.L. 14; 50 A. 354 (Sup. Ct. 1901) and culminating with State v. O‘Brien, 136 N.J.L. 118; 54 A.2d 806 (Sup. Ct. 1947).
These cases are authority for the proposition that when a general law of the State creates a duty, that law need not be recited in the indictment for the courts are bound to take judicial cognizance of its public laws. However, when a duty is created by private acts, the court cannot judicially notice the private statute, and therefore the same must be pleaded. These cases have reference to particular statutes which govern private undertakings. For example, in the Middlesex case the company was obligated to maintain and repair certain public streets. No public officer or public duty was involved. The indictment merely alleged that the defendant company neglected to repair. This, of course, concededly, is fatal, because there is no indication of how the duty to repair arose. These cases are inapplicable to the instant case. The accusations in the indictment charge, in legal language, malfeasance in office.
A case somewhat similar to that under consideration, is the case of State v. McFeeley, 136 N.J.L. 102; 54 A.2d 797 (Sup. Ct. 1947). In that case the defendants complained that the source of their duty was nоt sufficiently pleaded. The defendants were police officials and the court held that since their duties were generally known and accepted, it was sufficient in an indictment based upon the accusation of an official‘s misconduct in office to plead that the defendants were entrusted with the governance, control and management of the police department, and that they did unlawfully and willfully neglect and omit to perform the said public duties so enjoined upon them. That case seems particularly apropos. The indictments under consideration
Another case wherein an indictment was attacked is the case of Commonwealth v. Hubbs, 8 A.2d 618 (Super. Ct. Pa. 1939). In that case, the court quashed the indiсtment, but on a different ground. The point of the case which is important with respect to the case under consideration is that the portion of the indictment dealing with the duties of the defendant was upheld. In that cause, the indictment contained four common law counts, each reciting that the defendant was a public officer — superintendent of the Bureau of Police — and was charged with a duty to cause the laws of the commonwealth to be executed and enforced and that he disregarded his duties. The court discussed the fact that this officer was not of statutory creation but, nevertheless, implied that there was sufficient allegation of the defendant‘s duties in the indictment.
This indictment charges with clearness and certainty various cognate acts of official misconduct on the pаrt of the defendant. Malfeasance in office, generally termed official misconduct, is a common law offense. The attack upon this indictment is without merit, and therefore the indictment is valid.
Coming now to indictment No. 991, the defendant contends that it does not charge a crime, and also that the alleged agreement is not criminal under
The conspiracy charged in this indictment is predicated specifically upon
The indictment charges these defendants with 17 specific instances of overt acts wherein that conspiracy was given effect and was manifested. Upon inspection it discloses the following overt acts: On December 20, 1950, and on March 15, 1951, Lombardo took prisoners of the county jail outside the confines of the jail; that Lombardo, undersheriff, did order and direct Joseph Naphas to take out of the confines of the county jail one Cordelle Massi, and permitted him to be unattended; that the defendants on various days mentioned in the indictment did permit the wives of several prisoners confined in the jail to visit with their husband and were permitted to engage in acts of sexual intercourse with their husbands, and that the defendants accepted money for allowing such privileges; further that the defendants permitted prisoners in the jail to play games of poker for money, and permitted one, Rocky Catalano, to cut the games, that is to deduct certain portions of the money from each game.
A reading of this indictment clearly demоnstrates that it presents with reasonable certainty the facts necessary to render the offense judicially apparent and that is all that is required from a pleading.
It is further argued that the indictments are vague and indefinite to the extent of involving the hazard of double jeopardy, and that they come short of adequately informing the defendant of the charges he is being called upon to meet. The offenses charged in the indictments upon a review of them surely do not lack clarity. Defendant is not left to any uncertainty as to the charges and accusations made against him. The indictments clearly and sufficiently set forth the charges, and there should be no confusion on the part of the defendant in the preparation of his defense.
Motions made to dismiss the indictments under consideration are denied.