*1 355 the fact that the defendant in the pleaded guilty municipal court this require justify a dismissal his In appeal? Webber, regard, see State v. 76 N. 1908); J. L. Ct. (Sup. State v. & Heyer, N. J. L. 187 A. 1916); State (E. ex. rel. Borough South Belmar v. 4 N. Misc. Whittington, J. Jur., Error, 2 Am. 1926); Appeal § 987. p. from is judgment appealed affirmed.
For Justice Justices affirmance—Chief Vanderbilt, Burling- and Jacobs —5.' Oliphant, Waciieneeld, For reversal—None. JERSEY, PLAINTIFF-APPELLANT,
STATE OF NEW WELECK, CHARLES DEFENDANT-RESPONDENT. Argued September 8, 1952 Decided October 1952. *3 35S *6 Iluchin,
Mr. Paul T. Attorney-General, Deputy argued the cause Tovoe, for the L. appellant (Mr. Harry Deputy Attornejr-General and Prosecutor Acting for Bergen County).
Mr. Weinlraulb the Joseph argued cause for the respond- Selser, ent (Mr. John R. attorney). opinion the court by was delivered On 26, 1951, C. J. June
Vanderbilt, the Bergen County returned two grand jury defendant, indictments the against one charging misconduct office and the other attempted extortion. The defendant specially the pleaded statute of limitations and moved the Bergen County Court to dis miss indictments on the grounds that were they barred limitations, by 2:183-2, the statute 8.R. and that they charge failed to crime. The Court, County being of the opinion the indictments were not voted within the two- statute, year period prescribed by granted the defendant’s motion and entered judgments each indictment. dismissing review to State’s for certification petition
We granted Weleck, 9 N. J. 286 entered, thus judgments (1952). propriety consideration proceeding
Before of, we first County dispose Court shall action of this jurisdiction the defendant question by raised di- by of certification way review these judgments court to incidentally, Court —a County question, to the rectly granting was the defendant opposition not raised for certification. petition of the State’s 1844 it was that the recognized Under the Constitution of a motion to was or denial of quash granting former writ only Supreme reviewable Court *7 Then, discretion, N. J. L. certiorari for abuse of State 114 YI, Y, on Article Relying Section 1935). provides, 4 of Constitution which paragraph and, thereof, review, superseded “Prerogative are in lieu hear- writs Court, ing Superior on and be afforded in the terms and relief shall Court, by Supreme right, provided of the in except manner rules discretionary.” where such review shall be criminal causes that sole Superior the defendant contends Court to review the judgments dismissing depository jurisdiction concedes, how him. defendant the indictments against ever, if an the Appellate that the State had taken appeal this Court certification court to Superior by Division was there appeal Division while Appellate pending would have Such effect was procedure been order. Utilities, J. v. Public followed in Central R. Co. N. Dept. of 7 N. 257-259 J. (1951). We with the defendant’s contention that agree cannot herein has left followed this court without procedure Y, YI, Pursuant to Article Section paragraph jurisdiction. it 4 of the .1947 has been rule provided by Constitution of in lieu writs in criminal causes review of prerogative Superior had in the Division of the Court may Appellate be Buie 4:5-1. More it granted, on has appeal specifically, elsewhere been rule that in lieu of the by former provided certiorari, abolished, writ of now the State take an may ap- peal from an order of the trial court an indict- dismissing Quite ment, Buie 2:5-3(b) clearly, therefore, under (7). our present Constitution and rules the here had appeal to Division of the Appellate Superior Court. An Division, however, to the appeal Appellate was the sole and inway exclusive which the State could secure review. VI, Y, Article Section 1 of the Constitution paragraph provides: specifically * * * “Appeals may Supreme be taken to the Court: (d) Supreme Superior On certification Court to the Court and, provided Supreme Court, County where rules of the to the * * courts; Courts and the inferior Supplementing this constitutional has provision this court provided for certification to the arts directly County Co 1:5-l, the inferior courts motion, both its own Bule on petition, Bule 1:5-3. It was pursuant to this latter rule the petition for certification the instant was case made and granted. YI,
Article Y, Section paragraph 1 of the Constitution 1947 does not expressly and it has never require, by impli- cation mean, been construed to that an from a appeal trial court to the Division of the Appellate Superior Court must *8 first be taken before this court can exercise its power of cer- tification. To hold the jurisdiction of this to court entertain an by way of was appeal certification limited thus would be technical in the I, Y, extreme. Article Section 1 of the paragraph Constitution 1947 quite means plainly of that whenever an a lies from of a appeal trial judgment court —whether it be as of or as matter of right discretion and it whether be from Chancery the Law or Division of the Court, Court, Superior County or an inferior court —we may certify court, the cause to the trial directly either on our own motion or on petition, without the an necessity of appeal
364 the Superior Division of taken Appellate first to being Court. Division to the of appeal Appellate has an litigant
When VI, V, para- virtue Article Section by Court Superior 1947, court may certify this of the Constitution 2 graph and we discern no reason the trial court directly to cause an here, when, appeal true not be the same should why lies Divi- Appellate writ to lieu review by prerogative VI, Article Section Court virtue of Superior sion of the rules of court V, promul- 4 appropriate and the paragraph thereto. pursuant gated addressed an indictment
A to quash motion Then, court, 114 trial State v. supra, discretion of the quash court’s 1935), power N. L. 413 Ct. but J. (Sup. and plainest on “the clearest except is not to be exercised Davidson, 325, N. J. 328 v. 116 L. State ground,” unless it “palpably should stand and 1936), Russo, 6 J. 254 defective,” v. N. Super. (App. State be arbitrary, discretion cannot judicial “Such 1950). Div. and rather must be governed by or fanciful but vague Bunk, law,” State v. 4 principles accord with established N. Since the exercise of discretionary J. 485 (1950). unless not be disturbed on or review it authority appeal will abused, Longo, has In re 124 N. J. L. 176 clearly (E. been ; Collins, N. & v. J. State (1949) A. 1949); Bunk, N. J. 482 the ultimate on (1950), question supra, trial abused its discretion in is whether the court appeal this motion to dismiss the indictments. the defendant’s granting Indictmbxt 26, 1951, indictment, filed June charges: This ** * WELECK, “That on or about the second CHARLES W. year day our Lord March in the one thousand nine hundred * * * thereafter, forty-nine, being and and at divers times then employee Hillsdale, public Borough there a officer and “ * * Attorney Borough Borough, having, of said to wit: things, legal among duty Borough other to render services to said ability best and uninfluenced adverse to the of his motives
365 Borough duty request accept best interests of said and the not to or any gift, gratuity promise any gift agreement or to make under an or understanding any particular that he would act in manner with employer, Borough, wilfully reference to the affairs of his the said did unlawfully duty Borough and in and violation of his said as said Attorney demand, request Lubben, and receive from one David G. private citizen, promise he, that the said David G. Lubben pay him, Weleck, would the said Charles W. the sum of fifteen * * * paid equal thousand dollars which sum was to be in monthly July commencing instalments of five hundred dollars each in 1949, agreement understanding he, in return for an that the said Weleck, Charles W. would use his influence and office as said Bor- Attorney ough corruptly influence, Mayor exhort and advise the Borough and Council of the said of Hillsdale to enact a certain ordinance, pending, Zoning then to amend the Ordinance of said * * * Borough ; he, Weleck, and the said Charles W. did on two July 1st, 1949, July 7th, 1949, occasions after .to wit on or about July 14th, 1949, passage on or and after the about said ordinance demand of the said G. David Lubben the sum five hundred dollars * * * allegedly overdue, contrary then to the law common and the * ’ n = provisions of R. S. 2:103-1 It is readily apparent indictment undertakes to charge the defendant with office, misconduct in an indict- able common law offense and therefore within the purview (cid:127) “* * * of B. S. 2:103-1 which provides all other offenses of an law, indictable nature at common and not expressly provided statute, for by shall be misdemeanors.”
The common law crime of misconduct in office has Burdick, been well defined in 1 Law Crime (1946), § 387: p. “By conduct, office,’ misconduct,’ ‘misconduct in or ‘official is not meant mis- otherwise, person criminal or which is committed who happens public officer, to be a but which is not connected with his private official duties. Such conduct is sometimes called misconduct * * * distinguish it from official misconduct. office, misconduct,’ means, any “Misconduct in therefore, or ‘official unlawful behavior in relation to official duties an officer intrusted any way justice, or, with the administration of law and as other- defined, any duty public wise cern, by act or omission breach of a con- accepted public one who has office.” As stated quite simply Startup, N. J. L. 1877), again State v. McFeeley, *10 a “the 102, pre J. L. 107 Ct. violation 1947),
N. (Sup. crime, itself a for which duty scribed to the public essential, at law.” It offender be indicted common may in office therefore, allege that an for misconduct constituting both a the office and facts prescribed duty of that the indictment breach The defendant contends thereof. here is in both respects. deficient more an are nothing duties of office
The prescribed law the incumbent nor- less than the duties cast by law on holder by office. Duties be may imposed some by bemay prescribed in several ways: they office (1) a township law, as official action or such special private 314, L. 321 (Sup. v. 13 N. J. committee, Hageman, State charter, v. State a municipal Ct. or a 1833), provision ; 423, 1877) (2) L. 425 Ct. (Sup. 39 N. J. Startup, supra, as act of may general Legislature be they imposed McGovern, 115, 1947), N. J. 117 Ct. v. 136 L. (Sup. State O’Brien, 118, 1947); N. J. L. 127 Ct. (Sup. v. 136 State it nature the office out very or arise they may (3) Ellenstein, 304, self, 121 N. J. L. 317-318 (Sup. see v. State Donovan, 319, 321 (Sup. 132 N. J. L. Ct. v. 1938); State 102, L. 136 N. J. Ct. v. McFeeley, supra, State 1945); Lombardo, 18 N. J. v. 107-108 Ct. and State 1947); (Sup. where In those instances 511, 1952). 520 Super. (Cty. Ct. law. the or special private the duties are some prescribed by duties, where the of the but indictment must show source of the statute or arise out general duties are imposed need be office, duty nature of source very take the courts will judicial in the indictment for alleged N. L. duties, 13 J. Hageman, supra, notice of such State v. v. 314, 320 Ct. State Camden 1833); (Sup. Haddonfield & Co., ; 97, State v. 65 N. L. Ct. (Sup. 1900) J. Turnpike Co., 14, 67 N. J. L. Middlesex and Somerset Traction 136 N. J. L. McFeeley, supra, Ct. (Sup. 1901); O’Brien, 1947); supra, 107-108 State v. (Sup. L. 126-127 Ct. 1947). J. N.
The alleges indictment here before us the defendant had “the render borough attorney duty legal ser- (1) vices to said and unin- ability to the best of his Borough fluenced by motives adverse to the best interests of said “the Borough compensation from said Borough” (2) duty not to accept any gratuity or or request gift, promise make under an he any gift understanding agreement would act with any particular manner reference to affairs of his the said employer, Borough.” defendant argues that the first duties is insufficient to alleged *11 support the indictment it is a merely since statement of the duty owed by any to his client within the area the lawyer of legal It is representation. also that there is alle- no argued gation that' the defendant was called on the governing body the render with to borough to services legal respect the pending laws, ordinance to amend the and that zoning the absence of such a advice duty call for there was no legal to act. The defendant asserts that the the second of duties alleged inadequate to sustain the since it con- stitutes a mere statement of an limitation or principle ethical of conduct and not an affirmative It duty of office. is said that if this second as were duty to the defendant’s allegation to be considered to mis- adequate support indictment for office, conduct in then there would be no need for the exis- tence other office, more crimes to specific relating public such as the common law crime of extortion and statutory the prohibition of a a public having official personal interest with an contracts official It is further body. the urged by defendant that both as his allegations to duties as borough are deficient attorney for failure to the plead sources thereof. We find any no merit in of these and arguments con tentions His defendant. views as to the prescribed a duties of far borough attornejr are too narrow. Just as there are certain of police duties officers that are “funda mental” and known and “generally v. accepted,” State Dono van, 319, 132 N. J. L. supra, Ct. and (Sup. State 1945), McFeeley, v. 136 N. L. J. supra, Ct. (Sup. 1947),’ a that are there are duties of borough attorney
so certain known and and accepted,” “fundamental” and “generally them. clearly are alleged among duties the indictment as same the first duty pleaded fact that any not make it less duty lawyer of a to his client does to his To the con attorney borough. of a duty borough a a a doubt beyond if has as trary: lawyer duty, question his a best of does, to client to the he to render services legal interests, adverse motives and ability uninfluenced to his borough. has like borough attorney duty a fortiori public that of various There-is no duties requirement a well exclusive, recog it is officers but rather be mutually necessity common nized that certain basic duties are fact Donovan, supra, Thus in v. to wide variety officers. considered 132 N. the court 1945), J. L. 319 City Bayonne and other officials of mayor public had a the enforcement common responsibility Bridge Bristol Burlington law. And in criminal Driscoll Co., officers held that public 8 N. J. 474 — 476 we (1952), with serve the public are “under an inescapable obligation such display are fidelity,” highest “they required of, are to be they diligent and skill intelligence capable conscientious, arbitrarily exercise their discretion *12 faith, honesty and above all to reasonabfy, display good but cor and and that must be “they impervious integrity,” and must their business they influences transact rupting that the scrutinj'- so light public and in the of frankly openly their and work know and be able to public may judge-them not mere held, there “are “These we fairly.” obligations,” practical or idealistic abstractions of no concepts theoretical effect; the com they obligations by force and are imposed by and them as a matter mon law assumed public officers law The public of their office upon entering [italics added]. is the soundness enforcement of these essential to obligations the and of our which exists for benefit government efficiency the who are its people sovereign.” of was for the on the
It not necessary imposition defendant duties in the that the indictment alleged him or an the for governing borough upon official of call body advice with amendment to the legal respect to the pending duties of and are arise out zoning alleged ordinance. inherent in the office of itself and became attorney borough fastened the his and defendant with upon appointment with him so as acceptance of office and remained long he held it. The fact that demands other and more particular be made might upon capacity defendant his official no these and funda way existence of elemental negatives mental of his A has duties office. as borough attorney great a duty to render to his legal borough honestly services not he his when does own initiative without corruptly so on a first been him request having upon made as he does when such a has been And in he has the request made. addition plain at all times a with re duty to maintain such position spect to that he his duties borough perform can other properly.
The argument that the second a at duty borough torney a alleged indictment office duty pre scribed law but mere by ethical limitation or principle behavior is likewise were public untenable. If officer under no duty law imposed by his official conduct in regulate accordance with basic moral then principles, he could violate such and still principles be immune from indictment prosecution for misconduct We in office. no such recognize divorce of morals from the duties of office. public we are of the
Accordingly, the du opinion ties of the defendant’s office borough as attorney alleged are sufficient for thereof. purposes Nor indictment do we consider failure to allege sources those duties to be fatal. The office borough provided attorney B. 8. 40 iSY-lS and as we previously pointed may. out take judicial notice of this statute as general well duties naturally arising out of the office it. created Since sets forth facts indicating plain violation *13 the laws an offense
the ditties it follows that under alleged office, State, sufficiently has been of this misconduct in charged.
Indictment 26, 1951, filed indictment, likewise on June This charges: * * * WELECK, the second on or about “That day W. CHARLES year hundred and nine of March the of our Lord one thousand * * * duly thereafter, being
forty-nine, times and at divers Hillsdale, qualified Borough Attorney Borough appointed of and * * * attempt from one did his office to extort under color of said citizen, private Lubben, sum of fifteen thousand dol- David G. a * * * in did demand of lars W. that he said Charles Weleek payment by the David G. Lubben the said David G! Lubben the said him, to the said W. said sum of fifteen thousand Charles Weleek of * * * he, promise Charles W. dollars under the the said legal knowledge power his would and the office as Weleek use his Attorney Borough corruptly to and influence the aforesaid exhort Mayor Borough Hillsdale to vote favor of and Council of the Zoning ordinance, pending, Ordinance of to amend certain then * * * Borough fifteen dollars to be the said sum of thousand the paid monthly commencing hundred each installments five dollars July first, 1949, he, W. did two and said Charles Weleek 7th, 1949, July July 1st, wit, on or about after to occasions July 14th, 1949, passage ordinance after said the sum of hundred demand of the David G. Lubben five dollars said * * * said of fifteen thousand dollars and the said install- sum being or not of the sum five hundred dollars a fee reward ment demanded, charged accepted or the said law to be allowed private performance citizen for the of his Charles W. Weleek of Hillsdale, Borough Attorney Borough contrary to duties * * *” provisions law of R. 8. 2:103-4. the common and the R. 2 :103-4 referred to ill the indictment 8. provides: any “Any attempt person who shall commit offense mentioned any' law, subtitle, of an indictable at common this offense nature committed, guilty actually though be such offense is shall * * misdemeanor, charge purports It apparent extort, it is not defendant with an but clear attempt
371 whether the crime which it is the defendant alleged attempted extortion, was the law common or the for statutory crime the indictment makes reference to R. 8. 2:127-1 entitled no “Extortion” provides: which “Any judge, magistrate, sheriff, coroner, jailer constable, or other by office, any officer shall who color oí his receive or take fee or by doing office, reward whatsoever not for allowed law his shall be
guilty of a misdemeanor.” We fatal, however, do not consider the ambiguity of R. reading any 8. 2:127-1 does not reveal intention plain on the of the alter part Legislature to or abolish common law crime extortion. In absence of such intention statute must be considered with reference common State, law, v. 125, Cutter 36 N. J. 1873); L. 126 Ct. (Sup. State, 52 v. J. L. 223 & A. N. (E. opinion Loftus 1890 — Norton, printed only 19 A. v. 183); State 23 N. J. L. Ct. Ellis, L. 102 (Sup. 1850); State v. 33 N. J. (Sup. Ct. 1868). State,
In Kirby 320, 57 N. J. L. Ct. 1894), (Sup. it is stated: technically misdemeanor, larger “Extortion is an official while its signifies any oppression right;
sense it under color of in its strict signifies taking money by by any sense it officer color his part only Hawk, C., p. 418; office where none or is due. 1 P. L., 392; ‘Crimes,’ p. Bish. Cr. § Rev. Title § 23.” Barts, is crime defined in similarly State v. 132 N. L. J. 74, 79 affirmed 132 N. J. & 1944), L. 420 (E. A. 1945): comprehensive “Extortion, signifies sense, any oppression in a under right. Grimes, color of Russell on 305. In the strict sense it signifies by any officer, taking office, the unlawful color his any money thing him, or that not value is due to than more due, Blackstone, 10, p. is or before is due. Jones’ it Book ch.
2324, § 153.” It thus appears that the essential elements of the crime of extortion, law, both under the statute and at common are (1) taking money (4)
an officer of his office (3) color (2) due him: needs, elements of extortion The second of these of his office” a word color perhaps, explanation. “By money taken not due means must have the officer simply duties. There no him for of his official performance taking performance that the precede requirement such be the *15 duties, would although extortion generally 395, Burdick, it (1949), p. case. In 1 Law Crime § of is stated: money law, thing value must be taken “At the or other common rendered, rendered, is, or office. That the service to be
under color of rendered, apparently, pre- pretended to l>een must be or or have money power authority, be, and the must tended to within or official apparent added) capacity.” (Italics be taken an or claimed in such 561, 69 A. 165 Super. In v. Pa. Hopkins, Commonwealth was in a Are marshal 1949), 2d 431 Ct. (Pa. Super. in return having accepted money dicted for extortion for install tanks. The court for his to oil permits approval there said: money duties, performance of it makes no “If lie took the such sought disguised tip gratuity^ as a whether it was to be
difference money actually paid unimportant to It was him is whether the jury if, found, approval application, before or after the of the the paid -performance arrangement it be for the the that was to was his the duties of station.” at is that case, therefore, In the it oOno concern instant the time be under the the money arrangement the was to paid had . already passed. amendment to the zoning ordinance rule there cannot be con It is well settled that an commit crime unless the attempt, viction for attempt crime, if have constituted a State v. completed, would Cooper, State, N. 58 J. L. Marley 22 N. J. L. Ct. v. (Sup. 1849); ; L. Stow, 83 N. J. (Sup. 1895) rule, this upon Ct. 1912). Relying defendant contends the indictment here is deficient since offense charged, if would not completed, constitute extortion. With this we indictment, contention cannot The agree. brief, charges that the defendant as (1) borough attorney under color his office demanded (2) (3) money (4) was not allowed liim if by law. the defendant’s Obviously had demands been acceded to and the money actually paid him all essential elements crime of extortion would be present.
The defendant next attacks that a mere solicitation or demand not an grounds is attempt and that there is no overt constituting acts allegation any The attempt. attack is without merit. overt acts to constitute an must necessary attempt be viewed the light . indicated, intended crime. if de previously As fendant had actually taken under money the circumstances alleged he would have extortion. The next step committed short of actually taking money to demand it. The demand overt act If a constituting attempt. demand were sufficient, here then it would impossible be allege the crime prove extortion for we can attempted im'agine *16 no other act which would suffice.
The defendant’s final contention is that in dictment fails allege intent to commit the crime of ex tortion. We that to be recognize of an com guilty attempt to mit a crime a defendant must have intended to commit the itself, Schwarzbach, crime State v. N. 84 J. 268 & L. A. (E. Blechman, 1913); State v. 135 N. J. L. 99 Ct. (Sup. 1946). question here is whether the only indictment sufficiently alleges the intent. While the requisite word “intent” does indictment, appear it is alleged that the defendant ' did “attempt to extort.” These we words are believe equiv to an alent that the defendant allegation acted “with intent requirement to extort.” The of Rule 2:4-11 that the indict ment state “the essential facts constituting the offense met. charged” clearly
374 Limitations oe
Statute the indictments ade that opinion of Being extortion, and attempted misconduct office quately charge whether prosecution we must now consider respectively, 2 B. which provides: thereon barred 8. :183-2 punished any person prosecuted, be tried or £or offense not “No shall death, punishable be with unless the therefor shall found indictment committing years or of the offense incur- within two from time * *” * ring the fine forfeiture. a may in office series of allege An misconduct time, a State v. period across considerable spread acts Bolitho, affirmed 104 246, 1927), 103 N. J. L. Ct. (Sup. A. State v. McFeeley, supra, J. L. 446 (E. & 1927); N. acts fall 102, any L. Ct. If of the 1947). N. J. (Sup. return preceding next indict years within the two limitations, the statute ment, is not barred prosecution 107, N. J. L. 105-106 McFeeley, supra, a case the McFeeley duty police As in 1947). was criminal offenders held to continue officer prosecute office, case he so in instant the duties of as holds long so as set the indictment and forth borough attorney pre a are herein nature. When the continuing discussed viously money Lubben and entered demanded defendant into him, it constituted breach of with those corrupt agreement so the breach continued the defendant long duties and in his efforts to obtain the persisted money held office the indictment the defendant alleges from him. Since attorney made demand borough upon still Lubben while 14, 1949, 1949, July it is July 7, again readily on was with charged defendant acts mis apparent return of the indictment on years within two conduct that the statute limita and, accordingly, June prosecution offense. preclude tions does not *17 office, and at Unlike misconduct extortion extortion, are not offenses. If an continuing officer tempted by him, color of his officetakes law is not due money he has committed crime of extortion. The offense is com- plete before, with the and the limi- taking statute of tations runs from the time Similarly taking. offense an attempted extortion is committed when officerby color of his office demands the not due payment money him. is with The offense of the de- complete making before, mand and not and the statute of runs from limitations the time of the demand. If as result of the demand pay- officer, ment is actually’ made to the the intended crime of extortion is committed and the is in the attempt merged If completed crime. no is made and the demand payment for payment repeated, is the officer is a second and guilty’ of separate to extort. attempt
The indictment the defendant question charges with demands, 2, 1949, three on one March another making 7, 1949, on and a July 14, effect, third In July 1949. therefore, with the indictment defendant three charges separate The than attempts. attempt, first more two being indictment, yrears return prior to the barred plainly’ limitations, by7the prosecution statute of but the remain ing two not so barred. attempts remains, difficulty’ in a however, single count the indictment the defendant with three charges sep arate offenses.,contrary and distinct to “the well-settled legal rule that a in an count indictment cannot be utilized for the purpose of and distinct even joining separate offenses though Bolitho, nature,” of a like State v. N. J. L. 1927), Ct. affirmed 104 J. L. 446 & A.
(Sup. N. 1927). (E. indictment, however, in an Duplicity is not fatal necessarily but may be cured amendment out appropriate striking Lamb, all but one the offenses Thus in charged. 81 N. J. L. it was 1911), stated: technicality merely “It savors of to hold an indictment bad because through pleading charged against defective too much has been * * * by per- defendant. No harm be done can the defendant mitting charges to strike one of the from the indictment. state *18 right an to to defendant his constitutional This secures the course possible miscarriage jury prevents by grand indictment justice through * * * pleading. It will be for the state defective charge tried.” defendant shall be which the to elect on may of justice miscarriage instant case possible So in the on the defendant’s constitu- infringing be averted without will be to the indictment. It an amendment by tional rights the of the offenses charged to decide which for the State on Quite the State may obviously defendant is to be tried. March an attempt elect the defendant for try is barred the by that thereon any prosecution for the reason alleged attempt, The that striking limitations. statute of at the trial however, proving will not the from prevent as admis- thereto be otherwise relating may such the facts an attempt the defendant’s on one of guilt sible show thereto. subsequent the dates two Conclusions the herein we are of opinion Por the reasons expressed the defendant indictments with plainly charge both the the this State and that prosecu- offenses laws of against tion thereof not barred statute limitations. we Under the circumstances consider trial court its in the indictments on the de- dismissing abused discretion have noted that the indictment fendant’s motion. We more extortion as it now stands than one charges attempted the defendant in motion to offense. Since his dismiss raised no indictment on this objection ground since defect be cured motion may appropriate made pur- 2:4r-13, suant see no to Buie we reason why dismissed for this reason. should be from reversed and in- The are both appealed judgments trial, Bergen are remanded to the Court for County dictments move to with leave to State to amend Indictment 17106 all as therefrom but so eliminate one of attempts to. therein. charged extort J., (concurring reversal). “misconduct
Hehek, office” laid to the' first accused indictment could not “continue” as an offense after passage of the ordinance for the question, charge essence of is that the ac cused, “in violation of his duty” did borough -attorney, “demand, and receive” from Lubben “a request promise” *19 in $15,000 of payment monthly installments of equal $500, 1949, commencing July, “in return an for agree ment or accused, the understanding” “would use his influence and office” in attorney as borough “corruptly to fluence, exhort and advise the and Mayor Council of the * * * to enact” Borough the amendment the pending zoning local ordinance. Such the is breach of official duty The pleaded. mere demand the for did quid illicit pro quo not serve to the “continue” offense so to intermit the statute of limitations. Indictable in misconduct office the a duty volves breach of laid the upon incumbent the law, either of commission omission. It is “by conduct which the legal duties law imposed by have not been properly and faithfully 67 C. J. 432. discharged.” S. There an is obvious distinction substance between a violation of duty incident to an office and the later demand for payment of consideration, the corrupt after the breach or failure of duty for. bargained
The demand the consideration an constituted attempt extortion, to commit the crime of and this is the offense indictment, in the certain, second charged definite and sufficient terms. The legally itself made grand jury the dis- I tinction. concur in the reasoning of the Chief sus- Justice this indictment. taining Compliance with the demand would have constituted criminal extortion. If there be intent to given commit crime and direct ineffectual act done- to- consummation, wards its the elements of an indictable attempt to commit crime are 14 Am. present. Jur. 813. J. The (dissenting).
Wacheneeld, majority opinion finds the trial court abused its discretion dismissing merely below determined The court
indictments. concluded, it and, so having applied statute of limitations therefore, The first inquiry, otherwise. not do could the prosecution. limitations precluded whether statute date of the corrupt run from two-year period Did the were re- the indictments thus before expire agreement demand, to the last run from the date of turned, or did it wit, 1949, two-year period? is within 14, which July the crimes upon assumption based theory The State’s in the indict- as charged misconduct of extortion official runs from the and the statute offenses continuing ments are last overt act. 2, and the adoption March agreement than more 30, admittedly
ordinance March 1949 occurred 26, June return of the indictments years two before the main- the State can upon events which only leaving $500 payment tain demands for its case alleged the ordinance. passage 7 and after the July July *20 which, after conduct A must consist of continuous offense offense, and it continues as such con- complete becomes and has all the ingre- tains the essential characteristics same it full the in which period dients of the offense throughout runs the In instances the statute from continuous. such since the com- being, moment the offense first comes into but and, it if wrong offense is continues as com- plete repeated, mitted wdthin the be not- two-year period, may prosecuted, much criminal conduct as antedated that so withstanding the be of this two-year period punished. Typical could not are classification nuisances and desertions. public In the set in the charge instant case forth indictments influence, to undertaking was exhort and advise “corruptly and of the said of Hillsdale to Mayor Borough Council enact a certain ordinance then pending.”
The here involved was to only duty legal render advice and preparation services of the ordinance. The passage and of the ordinance adoption years two municipality before the return the indictment cut off the obligation the defendant in reference it. any duty resting upon to was There no an “ordinance then as cited longer pending” was the indictment nor there further on the any “duty” it defendant’s as to in the month of 1949. part July made; had been and even corrupt bargain assuming thereon, defendant acted his wrongful conduct im- properly or advising attempting to influence influencing in its of a municipal body performance governmental been more function had than two completed years prior the return indictments. more for the
Fothing remained defendant to do. He could not advise or influence the municipality pass ordinance n already established in solemn form the author- governing ities. we
Judicially are not warranted in the statute extending It is a limitations. mandate the legislative propriety wisdom of which reside in the Our Legislature. obligation is to enforce it as adopted.
Having concluded the statute of limitations was applicable, view the my case no be consideration need to the given contention advanced but not passed upon below that the in- dictment fails to state a crime. however,
In this I am not in regard, accord with the rea- or the conclusion soning but majority need further express my thoughts because of my determination applicability statute of limitations. Oliphant Justice authorizes me to he say is in accord with these views.
I affirm would below. judgment Heher, J., in result. concurring *21 For reversal —Chief Justice Vanderbilt and Justices Heher, Burling, Jacobs and Brennan —5. Oltphant
For and Wacheneeld —2. affirmance—Justices