*1 JERSEY, STATE OF PLAINTIFF-APPELLANT, NEW G. WINNE, WALTER DEFENDANT-RESPONDENT. Argued 2, March 1953 Decided March 1953. *9 Mr. William A. Consodine for the appel- cause argued lant Consodine, counsel; Mr. John (Messrs. Crummy and brief; Parsons, J. Gibbons on the Mr. Attorney- Theodore D. General State of New Jersey). McGeehan,
Mr. John W. Jr., the cause for the argued respondent (Mr. Weintraub, of Joseph counsel).
The opinion of the court was delivered defendant, C. The J. Prosecutor County Vanderbilt, 28, wras Bergen County, 1951, indicted November on on 19 counts him with criminal nonfeasance office. charging 30, On June 1952 the defendant moved the indict to dismiss ment. trial The court made order on August motion, which the granting State seeks to review here. first counts follow a pattern. They identify single the defendant as the he county prosecutor. They allege with was charged public all duty of reason- using proper, able, effective and lawful means within his and dili- power detection, arrest, gence and indictment conviction of offenders the law in with R. 2:182-5. against accordance 8. set forth his Specifically, they .all suppress disorderly houses wherein is conducted in the gambling county. They that he had sufficient charge assistance power and to enforce enjoined duties on him by law. Then each of the 16 indictments gives where and the times specific place when was carried on. Each gambling of these indictments only concludes the defendant charging knew these unlawful activities but that he “unlawfully wilfully did omit to neglect said perform public duties so him and enjoined then and there unlaw- continuously, did fully fail and omit wilfully neglect, to use and exercise, and cause to be used exercised, all rea- proper, sonable, effective and means within diligent power Prosecutor Bergen County, detection, arrest, of a conviction person persons who kept
163 aforesaid, wherein maintained the house as gambling might of a resort to which practice persons maintaining of come for the purpose purpose, namely, illegal at dice.” playing differs
Each of the last three counts of the that, from the first 16 instead of only charging counts that the times, at a it asserts gambling designated place member had that a defendant received a complaint charging different person Rutherford Police Department (a official, named in a corrupt public each was being count) and that did and omit defendant “wilfully neglect him; and the said duties perform public enjoined upon so did wilfully then and there continuously, unlawfully to be exercise, fail and omit use and and cause neglect, dili- exercised, reasonable, used and effective and all proper, means and as Prose- all lawful means within gent power detection, arrest, indictment cutor of Bergen County named. and conviction” of each of the officers official the distinct crimes for which public Among nonfeasance, be indicted at common law are misfeasance may Burdick, office, and malfeasance in Law Grime public The these three sepa sec. 272. distinction between (194:6), only rate crimes relates to a familiar classification well. the law crime the law of torts as runs but through elements, Each these three crimes has its own distinctive with either of the others. and one is not to be confused here, misfeasance and of malfeasance are mentioned crimes of law, in this are involved in the but because they not because and in trial decisions dealing both here court argument officewere relied misfeasance and malfeasance public with a course as if had a on nonfeasance. Such they bearing different crimes with diverse about reasoning ingredients tends con and the same inevitably as if were one they in law. to error consequently fusion of thought and malfeasance are not Misfeasance alleged something wrong There no charge doing indictment. On the contrary, gist charge fully corruptly. us whether act. The basic before question here is failure to nonfeasance in office is indict- properly alleged under ments our practice.
I. In must sufficiency of indictments we judging consider the official duties of the defendant. As we said in Weleck, 10 N. J. : (1952) State v. prescribed nothing “Tlie duties of an office are more nor than less may cast law the incumbent of duties on the office. Duties *11 imposed ways: by (1) be law on the holder of an office in several they may prescribed by special private law, be some or such as township committee, Hageman, official action a v. of State 13 N. J. L. 314, provision charter, (Sup. 1833), municipal 321 a a Ct. or of Startup, supra, 423, (Slip. 1877) ; (2)
State N. v. 39 J. L. 425 Ct. may they imposed by general Legislature act of the as State McGovern, 115, (Sup. 1947), v. 136 N. J. L. 117 Ct. and State O’Brien, 118, (Sup. ; they may 1947) (3) 136 N. L. J. 127 Ct. very itself, out of of office see v. Ellen arise stein, the nature the 1938) ; Donovan, 304, (Sup. 121 N. J. L. 317-318 Ct. State v. supra, 319, (Sup. 1945) ; McFeeley, N. L. 132 J. Ct. State v. 321 102, (Sup. 1947) ; N. 136 J. L. State v. Lom 107-108 Ct. and bardo, Super. 511, 1952).” (Cty. 18 N. J. 520 Ct. An duties is made the attempt identify powers of the the county Attorney-General with those of prosecutor and then to the and duties of identify Attorney- our powers General with the those of of Attorney-General England. History belies this contention. The of Attorney-General New could never have exercised the wide of Jersey powers the of in the face of Article III Attorney-General England the 1947, of Constitutions 1844 and the distributing of of branches, three powers distinct government “among executive, the and judicial. No legislative, person per sons to or one shall exercise branch belonging constituting others, any of to either of the powers properly belonging in this Constitution.” except expressly provided 1776, Even under of Constitution powers duties of the of New Attorney-General Jersey were quite the Attorney-General different from those of of England. is it that in to be noted Especially England prosecution
165 matter. It was not private crime was traditionally of until 1879 that the Office of Director of Public Prosecutors Act, 42 and was established the Prosecution ofOffenses Vict., England (2d ed.), c. 22 Statutes Halsbury’s 43 (5 of amendments, 47 and under this act and its Even now 895). Vict., 7, 58, Halsbury c. and 8 Edw. c. (2d ed.), (5 need act offenses 940), only English death, fraudulent offenses punishable by against coinage, laws, Howard, and violations the election of bankruptcies 98; Jackson, The Criminal Justice in England (1931), Here, 111. how Justice in Machinery England (1940), ever, private prosecutors long public prosecutors superseded As as 1686 we find a record early before Revolution. colonial Attorney-General appearing king Court Booh Burlington West New Jersey, (Reed In East New “the Jersey King’s Miller Ed. 56. 1944), from minor offenders Attorney-General prosecuted culprits murderers,” the Courts Common Right Journal New 1683-1702 Ed. Jersey, East Chancery (Edsall 1937), In 1703 the was Attorney-General punished 3 and passim. Keasby, for his failure to Courts prosecute, for nonfeasance 377. In 1812 Jersey New Lawyers (1912), statute was authorized “to appoint Attorney-General *12 the of the state in such to counties prosecute pleas deputies attend in Laws .person.” not be able to may as he Laws 1703-1820. In 1822 find 23; we Pam., Pennington’s name of in prosecutor mention each by county, the first act is the of the first clause 1822, precursor 25. This L. p. which the defendant relies heavily: 2:182-5 on R. S. pleas powers prosecutor of the shall be vested with the same “Each penalties, county, attorney subject within his as the same the and general to * * *” subject by vested with or to. law be shall observe, however, that the numerous civil to important It is have not been to the Attorney-General assigned duties of the His in each duties are county. largely, county prosecutor It is the criminal side. significant on exclusively, if not note, moreover, the exclusive of his to him on grant power the criminal side: exclusively prosecuted “The criminal business shall of the state by prosecutors pleas, except where, the the counties being, may prosecutor, prosecutor time there be no or where the attorney general provided desires the aid of the or as otherwise
'law.” R. 8. 2:182-4. See 589, State v. 136 N. J. L. & A. Longo, 1947). (E. 2:182-5, In 1898 the second clause of I?. we deem S. which was enacted: controlling “* * * diligence and he shall all use reasonable and for the latoful
defection, arrest, against and conviction of offenders 1898, 237, pp. 238, (Emphasis added.) L. laws.” cc. 866-941.
This statute has with- remained on the books for 55 years out to its There are no cases New challenge meaning. it. This clause Jersey clearly represents construing to the of law enforcement that legislative response problems were reflected in the rapidly increasing population State, in the of life in complexities many urban communities and in the need for the in the concentration of authority arrest, detection, indictment and county conviction of criminals. Significantly, county prosecutor Bergen detectives, a staff of nine County county allowed N. J. A.S. are 2:181-35. They appointed: prosecutor detection, apprehension, “to assist arrest and against conviction N. law.” J. S. A. 2:181-33. of offenders (Emphasis added.) He also has six at county investigators serving pleasure him and removable detection, apprehension, “assist arrest and con- against (Em-
viction the law.” N. J. 8. A. 2:181-41. of offenders phasis added.) 274, In L. forth, c. as above set enacting relating, detectives county county investigators, Legislature *13 was careful the to incur prosecutor’s power not to curtail in and his duties: statutory about expenses “Nothing power in this act shall be construed to limit the county prosecutor duly upon, prosecutor pleas, conferred detection, arrest, by law, expenses indictment him to in the incur against and conviction criminal of offenders the laws this State.” added.) (Emphasis J. S. A. N. 2:181-50. fixed a intent a The statutes reflect not but sporadic the county responsi to cast on policy prosecutor legislative arrest and conviction detection, for the bility apprehension, the merely in his Nor has county. Legislature criminals the county duties of vast on importance imposed it office is Not has seen to his only prosecutor. county with assistant detectives prosecutors, staffed him It has investigators. power paralleled county given detection, in “the in the to incur county expenses elsewhere of offenders” indictment and conviction arrest, against law: necessary expenses by pleas “All incurred for. county detection, arrest, and conviction
each approved, shall, upon being against certified to and the laws offenders hand, by judge oyer court of or a under terminer county, by quarter paid judge sessions for such be of the court of thereof, be of chosen freeholders whenever the same shall the board expended approved amount or amounts such board. The by the board of chosen freeholders shall not exceed the amount fixed emergency appropriation, expenditure regular unless such in its justice supreme specifically order of court authorized (Emphasis . presiding county.” added.) in such R. S. 2:182-7. in the of which we are aware where reports There is no case of the former Court or justice Supreme assignment of a expenses county prose- has failed to approve judge detection, arrest, indictment and conviction of cutor intended him Clearly give offenders. Legislature responsibility the primary dominant position laws, not merely by of the criminal conferring enforcement him him but the means of by giving implement- on authority contrast, sheriff, In he authority. although such ing *14 168 the
possesses common law broad of law enforcement powers in his county, is not to incur in given right expenses of criminals that has to prosecution county been granted The inevitable result of is that his prosecutor. this work as a law enforcement has officer been rendered less effective without, than that the county however, of prosecutor, diminution of his powers responsibilities. is it
Nor an answer to the to State’s that position say other statutes also cast some of these on responsibilities other officers such as the local elective public officers and the local we Weleck, As said 10 J. police. N. supra: (1952), requirement public no “There is that the duties of various officers mutually exclusive, recognized be but rather well fact that necessity variety
certain basic are of common to of duties wide Donovan, supra, (Sup. officers. Thus State v. 132 N. L. J. 1945), mayor Ct. the court considered that and other City Bayonne responsibility officials of the of had a common for the enforcement criminal of the law.” Act of 1898 on meaning imposing the county prosecutor detection, arrest, duties in the indict ment and conviction offenders the law and the against numerous statutes restricted, the act cannot implementing be as the defendant it, would have us construe to the prosecution of matters where complaints have been already filed. The meaning words quoted is clear and unmistakable intent. Obviously they do mean the county that prose cutor is required detect, arrest, personally indict con vict, he and often though may mean, does do so. do They however, that he is responsible for those seeing things are done either by himself or staff his or by the local law enforcement authorities within his functioning county. It is a matter of common knowledge local law enforce ment authorities from chanceman on his beat chief him police beyond to the director of public are safety to the responsive county prosecutor’s of law concept enforce ment on if pain possible indictment do not they cooperate with him in the law. He enforcing does not stand alone. is in a He to command the all position cooperation law authorities in the county. He is enforcing amply if task, equipped performance of indispensable law order are to be maintained in the all county our both of are rights person property adequately safeguarded.
It is that the on urged statutory imposed obligations county are prosecutors so onerous that the could Legislature *15 not have intended the set forth carried policy so clearly forward in successive 55 A wide enactments for years. variety fancied terrors are for con county prosecutors if jured up, the statute is construed to mean what plainly says. such view can Any arise from to read the only failing cited clause in the statute as a We whole. have already called attention to the fact that county does not stand alone; others have corresponding responsibilities he is in a to enforce their position aid responsibilities of his It performance own. is that equally apparent his official is responsibility not an absolute one and that the is impossible expected not of him by Legislature. him enjoins
statute all merely to “use reasonable lawful are the diligence.” These standards of life that ordinary are enforced in the courts being a wide daily of human variety are They likewise the relationships. tests by imposed law: common Duty. “Neglect Every of Official officer commits a mis- wilfully neglects any perform duty
demeanor who which he is by by perform provided either law bound common or statute that discharge duty greater danger of such is attended with than ordinary, activity may expected man a firmness and to en- Digest Stephen, (8th 1947) counter.” the Criminal Law ed. art. 145. The indictment sets forth clearly breaches official the defendant in his failure with re duty by to act he spect to matters which concerning expressly charged to do so statute. some of the statutes from which by Though duties pleaded, the defendant’s are need not be: spring they 170 by special prescribed some “In those where the duties are instances law, duties, private must show source of the the indictment general imposed or arise but where the duties are statute out very office, nature of the the source of the need not be judicial alleged in the courts will notice the indictment take Hageman, supra, 314, duties, (Sup. 13 such State v. N. J. L. 320 ; Turnpike Co., 1833) & Camden N. State v. 65 J. Ct. Haddonfield 97, (Sup. 1900) ; v. and Somerset Traction 98 Ct. State Middlesex
L. ; ., 14, (Sup. 1901) McFeeley, N. J. Ct. Co L. 15 (Sup. 1947) ; O’Brien, supra, 102, State v. 136 N. J. 107-108 Ct. L. supra, 118, (Sup. 1947).” State v. 136 N. J. L. 126-127 Ct. supra. Weleck, (1952) N. J. There is no flaw in the indictment on this ground.
II.
hereinbefore
oí the
duties
Regardless
statutory
detection, arrest, indictment and
set forth with
respect
criminals,
or not
conviction of
of whether
regardless
all
lawful
the defendant
he had used
reasonable
diligence,
inaction and
as to
insists
no amount of
neglect
statute or
duties,
all of
whether proscribed by
.law,
him liable
for official
common
will render
to indictment
misconduct, for
the defendant
quasi-
the reason
*16
immune,
claimed,
from criminal attack
officer
is
judicial
is
in the indictment
unless
on
corruption
part
charged
juris
at
It is to be
that
some
and
the trial.
noted
proved
a civil suit
county
is not
to
for
subject
dictions
prosecutor
citizen,
at the
an
Yaselli v. Goff,
hands of
damages
aggrieved
1239,
56 A.
R.
affirmed 275
Cir.,
171 or the cripple nullify enforcement of the criminal law in his county to choose at his the of pleasure the criminal portion he law would have, enforce. He would in his the county, power so suspending the Stuart sought strenuously by kings, Holdsworth, 440, Law ed. History English (3rd 1923), of 4 Idem (1924), 205, 192, 6 Idem 204, 217-225, 241-2, and Maitland, The 188, Constitutional Law 302-306, England, of denied them but in the Bill of English “The Rights: of pretended power laws, of suspending execution of laws, without consent Parliament, of is (cid:127)& illegal,” Wm. 2, 2, M. sess. c. sec. ii. There is no difference in principle there and would be no difference in effect except to terri- torial between a range Stuart and openly defying preventing execution of the law and a county prosecutor at winking the violation of the Each tolerating laws. is utterly with inconsistent of law is the ideal and range of the common law goal equality before law which fundamental is a tenet American In his polity. county, seen, as we have is the foremost representative the executive branch enforcement government criminal ex epitomized law. As rel. Johnston Foster, 32 P. 534 14, Kan. (Sup. 1884): Ct. prosecution “He is the officer whom the state relies jurisdiction. of all criminal offenses within his If he fails or refuses act, powerless. paralyzed.” the law is It voiceless fate, seen, Prom such a as we have scheme statutory law enforcement in each each county seeks to com- protect citizen, and, munity every fortunately general welfare, there is no rule or of the common law that principle or imperils statutory frustrates intent.
It further asserted removal from office impeachment, slow cumbersome constitutional process VII, 1-3, Art. Ill, Sec. or sus pars. Constitution when an by statutory authority, assignment pension judge *17 the either Attorney-General personally requests any county to attend in “for the of purpose prose deputy n therein,” the criminal business of the state B. S. cuting the of board or where an assignment judge 2:182— himself requests so chosen freeholders or the prosecutor available the remedies 52:17A~o, under N. J. A. are sole S. a county prosecutor. to the State for misconduct of any these however, that law, There for holding is no basis re remedies and administrative alternative constitutional law, authority the criminal nor has the sanctions of place v. been cited to us. State for such a novel proposition Jeffer of disposes L. 507 & A. son, 1907) expressly 90 N. J. (E. proceedings the of the priority impeachment question referred The two statutes above criminal prosecutions. over the county prosecutor, the removal of to do not contemplate B. 2:182-12 Indeed, under S. his suspension. but merely that for the first three months is not salary suspended duties, and the takes over his balance Attorney-General the at the termination of the attendance is payable of his salary A. 52:17A-5 is even more N. J. S. the Attorney-General. “that no county prosecutor providing to the favorable the shall allowed Attorney-General] so compensation [to or assistant prosecutors.” of the salary affect statutes, that each these to note it is significant In passing or his Attorney-General representative, in authorizing mentioned, take over the work in the circumstances includes "the investigation expressly county prosecutor misdemeanors.” crimes alleged duties a county prose Obviously many discretion, His how exercise of discretion. involve cutor for the statute expressly or absolute ever, unregulated use all reasonable dili he “shall that commands lawful arrest, detection, conviction of gence kind that of discretion he the laws.” against offenders ex rel. stated McKiltrick admirably must exercise 312, 182 W. 2d 313 Ct. 1944) S. : Wallach, (Sup. 353 Mo. necessarily requires prosecuting he officer aof “The accuracy, inquire e., matter with care and investigate, into the i. evidence, law and available he examine case in each other; applicability that his duties facts, of each to the weigh intelligently require the chances of success- that he further
173
always
prosecution, having
in mind the
ful
termination
county
prose-
importance
serves of the different
to the
he
relative
necessity
might
involve
initiate.
duties of
cutions which he
Such
prosecuting
good
at-
sound discretion of the
a
torney.
faith exercise of the
right
power
conferred
in that
means
‘Discretion’
sense
acting officially
by
prosecuting
upon
in such cir-
officer of
law
the
case, according
cumstances,
separate
to the dictates
and
each
judgment
judgment
and
and conscience uncontrolled
of his own
person.
in
be exercised
discretion must
conscience of
other
Such
wisely,
law, fairly,
principles
accordance with established
right
choose a course of
includes the
with skill and reason.
It
willfully
faith,
non-action,
in
but chosen
bad
action or
chosen not
* * *
regard
right
is
under
the circumstances.
with
to what
prosecuting
good
in
faith authorizes the
Such discretion exercised
determine,
personally
and in collaboration
in conference
officer to
officers,
liquor
peace
that a certain
with
plan
officers and
enforcement
policy
best
will be
a certain
of enforcement
of action or
general
enforcement,
productive
law
in
and will best result
of law
conferences,
repeated
con-
such
observance. That
there were
respondent
governmental
and such
collaboration between
tacts and
shedding light upon
bar,
agencies
a circumstance
at
case
prosecuting attorney’s
in a
non-action
case or
whether
action or
good
arbitrary
faith exer-
of discretion or a
cases
exercise
was
cise of discretion.”
under consideration from
In
the case there
distinguishing
tried
in
had been
cases in Missouri
which prosecutors
other
the court continues:
for nonfeasance
“However,
far different from the
facts
those cases are
Wymore
ex
[State
In
situation in this case.
case
McKit
int.
Wymore,
(Sup.
1939)]
169,
132 S. W.
Mo.
2d
Ct.
trick v.
979
attorney
complete
prosecuting
to ever
failure of the
there was
laws,
any prosecution
gambling
after
even
for violation of
commence
having
‘he
This court found that
full information about conditions.
perform
prosecuting at
whatsoever
duties
made no effort
;
169,
torney’
986]
2d
and that he ‘never
[345 Mo.
132 S. W.
discretion,’
pretended
point
to exercise
where he even
reached
Obviously that
men.’
‘under the influence of evil
but instead was
McKittrick
[State
Both
ex
not
the situation here.
the Graves
inf.
990,
Graves,
[State
Williams
ex.
91]
144 W. 2d
346 Mo.
S.
Williams,
(Sup.
Mo.
likewise is the situation here.” The tests laid thus down afford adequate protec tion to both public and county prosecutor deter what is all mining reasonable lawful diligence under *19 the statute. set the They forth standards at com developed mon law and with they accord the of our requirements statute. It is to observe that kind of discre interesting tion not different from required county prosecutor is that of a required judge: implies “It is settled that of the exercise discretion conscientious arbitrary action,
judgment, not and of law and takes account particular case, being circumstances of the reason and directed judge just Shiren, conscience of the to a result.” 9 N. J. (1952). arrest, A and detect county prosecutor has an to obligation as well to obtain them. He is indictments and prosecute under a situations statutory duty investigate to suspicious and determine the in and facts the process detecting that makes when he receives information arresting, especially the law violated. There reasonably probable has been are when in faith undoubtedly instances a refusal many good to after due lack the element prosecute would investigation e., “wilfulness,” act, but he refuses to i. where willfully excuse, without cause or he is a breach of just guilty him liable indictment. The between to rendering distinction faith a willful failure exercise discretion good to act to be his conduct in of all the judged by light A facts and within the county prosecutor circumstances. has inevitabty orbit of discretion various choices action even of This as much to the inaction. discretion applies from the as it indictments does to grand jury seeking a nolle after prosequi prosecuting recommending found, has he all indictment been but must at times act in faith exercise all reasonable and lawful good diligence of his work. every phase use the indictment of the phrase “unlawfully exercise the defendant of wilfully” negatives good faith. In him faith in effect it with bad his' legal charges failure to the duties of his office. to perform According indictment the defendant received reliable information of 19 cases in which the laws of New were habitu Jersey being violated. did ally indictment he According nothing; he failed and completely either neglected investigate per sonally his own staff of detectives through county county or to call on the local to take investigators, police action. The in each instance the defend jury grand charged ant’s failure to was the act result of unlawfulness and willful ness. such an Clearly is sufficient to allegation support indictment.
Not only is the discretion of the defendant not absolute, but it is not in an necessary corruption charge defendant, him. The against on deci drawing sions with dealing office, malfeasance in insists corrup *20 is an indictment, tion essential and that the ingredient failure of the indictment it charge corruption renders fatally This defective. be true if the indictment were might for malfeasance, for malfeasance The implies corruption. indictment here, however, is not for malfeasance but for nonfeasance, and corruption has never been an element of nonfeasance. If were, it would become identical with malfeasance. The furthest the authorities in any form go of official misconduct is to an in the require indict allegation ment of either willfulness or corruption, on whether depending nonfeasance, misfeasance charge or malfeasance: law, by “One in at office indictable the common confirmed stat- states, wilfully corruptly neglects utes in most of our if he or or de- any duty, equally by prescribed clines official whether the written by Bishop, Law, (8th 1892), law or 1 unwritten.” Criminal ed. sec. 468 al. Amos, also Ex 5, See Parte 93 Fla. 112 289 So. Ct. (Sup. where it 1927), was said: offense, however, charged having “Tile common-law must be been
willfully corruptly or done or omitted. In the absence of such alle- gation merely charges comptroller the indictment in this case judgment complicated with an error of in a matter where the banking may and intricate details'of a business have misled him to nonaction, charge corrupt unwise but there is no of willful or non- part.” action Other authorities that, maintain in the absence statute, neither willfulness nor need be corruption alleged: office, misconduct,’ means, therefore, in “Misconduct ‘official unlawful behavior relation to official duties an officer intrusted any way justice, or, with the administration of law and as other- defined, any wise act or omission in breach of a con- cern, accepted public one who has office. term is broad enough malfeasance, misfeasance, to include and nonfeasance. Under statutes, necessary some it is the misconduct should be ‘wilful’ corrupt,’ malicious,’ but, or ‘wilful and ‘wilful in the absence provisions, corruption of such or criminal intention is not essential. doing wrongful act, neglect The official of a or official to do act ought done, Burdich, Grime, which to be is sufficient.” 1 Law 388. That is the view in this State. In prevailing State v. Jefferson, N. J. L. Ct. (Sup. affirmed 90 1916), N. J. L. 507 &(E. 1916), A. the Prosecutor of the Pleas of Cape was May County convicted of office, malfeasance in money not to taking prosecute It gamblers. was claimed on error to the former Court that Supreme was charge one a misdemeanor. Mr. compounding Garrison, Justice one of our ablest judges, only of this disposed fallacious but stated the law argument of this with respect misconduct: official testimony ample “The detailed as to these transactions afforded jury ground prosecute to find that the failure to was the corrupt agreement question result aof in which sense was *21 jury. not, agreement however, left an Such was es- sence of the offense of malfeasance as it would have been of the crime compounding. Indeed, agreement, payments such an or even such money receipts malfeasance, were not essential to the offense of which, doubt, might fully without be as committed for reasons of personal political favoritism or for reasons no known or for reason at all.”
He then to demonstrate in the proceeded why instant should case not have under- pleaded thereby taken to prove corruption: “Still, pecuniary having motive been set forth in the indictment jury, placed upon improperly and tried out before the the court proving alleged, the state the burden of what it had and this by showing relationship receipt did that such a between
money prosecute legitimate and the failure to was a rational evidence, agree- though express inference from in the facts even many shown, ment in nature so words was not the transaction its being saying speak one to louder than which the trite that ‘actions eminently applicable.” words’ was as the we are here decision though point this reserving issue is not to us. presented
On to the Court of Errors and court appeal Appeals, dealt with the of im- only question of alleged priority over a criminal of a peachment proceedings prosecution Gummere, constitutional officer. Chief Justice for speaking the entire court said: assignments Supreme “Numerous of error were submitted to the Court, opinion and received consideration tribunal
promulgated by grounds it. The of attack the conviction same repeated single which were made have been before us. With there exception, disposition we are content with the made of them opinion.” court and for the reasons set out cor- indictment is not defective failing allege ruption.
III. It is the defendant’s contention that each count of the indictment deficient in failure to state fatally its facts forth his and omission of setting duty. alleged neglect Our State Constitution that “No shall be guarantees person held to offense, answer a criminal unless on the present ment I, of a Art. 8. jury.,” Our grand par. rules of court that “The indictment or accusation provide shall be a written statement the essential facts constituting
178 the offense Rule 2:4r-ll charged.” The (a). purpose indictment to inform the accused of nature of the offense so as enable him charged to to make an adequate defense as well as his to avail himself of conviction to avoid the threat of acquittal jeopardy, double Morano, 134 N. J. L. 295 & A. The (E. 1946). indictment also to inform serves the court of the facts so alleged may decide whether are sufficient law to they support if one obtained, Hess, conviction should be S. v. 124 U. U. 31 483, S. L. Ed. 516 indictment must be The (1888). examined in the constitutional light provisions, rules of and the court decisions. counts set
Paragraph of each the first 16 forth duty defendant’s as be public duty using exercising causing “the and used and be exercised, proper, and all all reasonable and effective means and public power preserving peace lawful means within for and insuring County good Bergen, suppress- order and the said * * ing disorderly gaming all [etc.] houses wherein 5 of each of the first a breach of Paragraph charges counts unlawfully wilfully continuously, neglect “then and there and did perform enjoined public upon and omit to the said duties him and so continuously, unlawfully wilfully neglect, then and there and did fail exercise, exercised, and omit and to use and cause to used and proper reasonable, diligent power all and effective means within his Bergen County, detection, arrest, as Prosecutor for the indictment person persons kept and conviction of a who and maintained * * * gaming but, contrary, house aforesaid on the and then unlawfully permit gambling in there did suffer and the manner aforesaid, wit, he, Winne, form the said G. con- Walter tinuously, unlawfully wilfully neglect perform did and omit to enjoined by using exercising duties him said proper, so all reasonable and all and effective means lawful means detection, power, diligence arrest, within his ** against conviction offenders the law Counts 18 and 19 contain same substantially language as to the duty.
Each of the first 16 counts the existence of a alleges particular house disorderly at a street specific number.
type of is set forth with the dates when gambling together *23 the gambling operation took place. Each count charges the defendant knew of the existence of gambling It activities. is difficult to see how the indictment could be more informative on these matters without evidence. pleading
The defendant that each count argues naked alleges merely conclusions of a vague broad to use “all duty proper, reasonable and effective means and all lawful means” to a suppress particular house, as well as a gambling vague indefinite breach of in that duty the defendant “unlawfully did willfully and omit to the said neglect perform duties” and “did fail and omit neglect, to use and exercise” all proper, reasonable, effective and means “the for diligent detection, arrest, indictment and conviction” of those main each such taining house. We have said that where the duty arose from some special private law the indictment must reveal the source, but where the duty was imposed by a gen eral statute or by nature of the office was unnecessary to set forth the source since court will take notice judicial Weleck, of the duties. State v. supra. Each count uses the- of R. 2 :182-5, S. in language supra, defendant with charging the duty “detection, arrest, indictment and conviction” of violators of the laws. When the gambling defendant’s duties as are county prosecutor prescribed stat general ute, it is unnecessary plead source of the duty for the courts will take judicial notice of them. It when only duties arise under a special private law that must they v. pleaded, Weleck, State 10 N. J. 355 (1952), supra. Concerning a breach of allegations duty, defend- ant that insufficient facts are argues to show wherein alleged defendant violated his The defendant duty. maintains that the indictment should him inform he should steps have taken in each situation in order to carry out his duties Here the prosecutor. is nonfeasance, a charge charge when doing statute he nothing, has the “detection, arrest, indictment and conviction.” The defendant failed to
take steps to these It is accomplish objectives. unnecessary to inform the defendant that he should have “detected” when he received information of illegal activities. These have gambling contentions been disposed inof earlier cases of nonfeasance office. In Donovan, 132 N. J. L. 319 Ct. (Sup. 1945), mayor other public officials of were Bayonne indicted for non feasance in office to take suitable failing refusing steps for the prosecution of offenses on scale. The flagrant large indictment did not inform the defendants as to what steps they should have taken fulfill their duties. In rejecting the defendant’s contention that the indictment was deficient the court said: ground argued “The first on which it is that the indictment should this, be set aside relates to matters of form. toAs it is sufficient say that our examination of the' indictment ir- fails to indicate regularity regard. charges plain in that It terms that the defend- *24 public City Bayonne duty ant officials were officers of the of whose city, they it was to see that the law was not broken in that and that willfully, knowledge, culpable negligence, with or because of failed to were, steps remedy they take suitable to criminal conditions which of fully public notoriety. argued, aware and which were of It is a point, branch public of this the duties of the defendants as officers are confined to those in ordinances and resolutions sxiecified specifica- of the board of commissioners what and is called ‘a written deputy public safety,’ tion of the duties of the director of and that allege the indictment fails to breach of such duties. But this fly ordinary seems to us to in the face of common sense. One of the police department, police fundamental duties of a from chief of patrolman, is to be on the lookout for infractions of the law and to diligence discovering reporting them, use due and and in a proper arresting perpetrator lodging prosecuting case and and a proper complaint. Detective a bureaus are common institution in cities; disorderly common, keeping houses all are too and a dis- orderly house is one' of the commonest of crimes. Part of the of city steps way a prosecution prevention commission is to take suitable and disorderly houses, (and perhaps and for a willful unduly negligent) duty, responsible breach of that the officers performance
for its are liable.” In State v. McFeeley, N. J. L. 102 Ct. (Sup. 1947), the indictment the defendants in charged almost the identical with that used here language with the duty of preserving peace suppressing nn- gambling alleged they lawfully willfully and omitted to enforce the neglected laws. In the contention that the indictment failed rejecting to state the nature and of the accusation Chief particularity Justice Case said in his for the court: opinion proper complaints against persons “The failure to initiate there arrested, plainly particularity is identified. The is obvious. nature of the accusation is manifest from the close adherence to the provisions ‘willfully unlawfully statute. The words did commonly book, upon running make and take what known as a horses, geldings’ clarity mares and have been held to have the certainty requisite apprise persons of statement indicted for that they misdemeanor of the offense are called to meet. State v. Morano, language sufficiently 134 N. J. L. 295. If that certain in charging offense, an indictment main is likewise sufficient charging police prose an indictment officer with misconduct in not cuting that offense.” The first 16 counts are sufficient. Each funda- satisfies its mental purpose the defendant of the nature of informing Mm. charge against
As to the last counts, three we reach similar conclusion and for the same Each reasons. count sets again forth the duties, defendant’s existence knowledge aof named official, corrupt the date when the defendant received this information, and his failure take reasonable and lawful means “detection, arrest, indictment and conviction” of such official. The defendant was adequately informed of the nature of the him. The charge against makes defendant much of the fact that each of these three counts fails to specify the named official charge against but labels him merely as a “corrupt official.” It remembered, must be however, that of the in purpose dictment is to inform the defendant of the nature of the *25 him. He is here charge against with charged doing nothing. If he needed further defense, information for his he might have aby bill of under sought particulars Buie 2 :A-14.
The power to quash rests in the sound discretion of the trial but this judge, discretion should exercised on the “except plainest v. State ground,” Ellenstein, 304, 121 N. J. L. 325 (Sup. 1938), Ct. or on
182 “the clearest and plainest as it was in v. ground,” put Davidson, 325, 116 J. L. N. 328 Ct. 1936), or unless (Sup. the indictment defective,” Russo, is 6 N. “palpably State v. J. 250, 254 Super. Div. (App. 1950), where the especially statute run, Tilton, of limitations has State v. 104 N. J. L. 268, Acton, 55, 274 Ct. 9 N. (Sup. 1928), State J. Misc. Ct. Our (Sup. 1931). courts have held that repeatedly “discretion not to be exercised in a case like this where ought injustice may be done to the state and where the thereby refusal exercise it the defendants deprives of no substantial Lehigh State v. Railroad rights.” Valley Company, J. L. N. Ct. (Sup. 1917).
From what has been said in the various points discussing raised here the conclusion is that the trial inescapable court abused its discretion in the indictment. dismissing
The is reversed. judgment J. Nowhere in the State’s (dissenting). Wachenfeld, made, brief is admission but on oral it was argument conceded that the defendant was a frankly gwasi-judicial his duties the use officer and performance required wide discretion. therefore, is whether or not inquiry, making what, decision as to if he was to do under the anything, circumstances, he if his could be indicted conduct was given or with evil intent. not corrupt of innocence presumption recognized every- Paralleling law, where without in the criminal there also exception is the natural an innocent man’s motives presumption So, until the is contrary are charged alleged, good. act of a officer matter of discretion guasi-judicial involving with motive. is to be good presumed its customary weight, If the con- presumption given concerned we encounter the anomalous the indictment struing that which criminal. The good situation constituting result is incongruous. have indicted and been convicted of
Other prosecutors but after were only they conduct office charged improper
183 and with with of “corruptly doing things complained Ct. evil intent.” v. N. J. L. 246 Bolitho, State 103 (Sup. 104 446 & A. State 1927), 1927); affirmed N. J. L. (E. 88 N. J. affirmed Jefferson, 1916), L. Ct. (Sup. N. L. 507 J. & A. 1917). (E. that there was
The on openly acknowledged argument in a cause a its authority position to single support the one held and attributed by involving respondent draftsman- to “bad omission document question we are asked treatment. by judicial which to ship,” repair the indict- The uniqueness respondent emphasizes first time in the construed, “Eor the ment to be avowing: well, a United States history England for non- liability is here with criminal charged motive.” without or bad corruption feasance allegation arise but The does not from statute liability asserted in the common law. founded act with and an morality, law is not co-extensive
Criminal has The judiciary crime it is merely wrong. is not a because only That can inherent to make an act criminal. no power and, in the absence of by be accomplished Legislature, law, may act is a however wrong no crime by prohibition or by corruption Human unaccompanied seem. shortage, faith, criminality. does not constitute bad criminal, different of conduct. One is are classes There unethical immoral, improper. and a third is or another reaction are molded and graded public The latter justified matter how scathing no but opinion, be, does not become the conduct condemned may expression has classified it. until so the Legislature a crime Webster is: “corrupt” definition ascribed etc., correctness, truth, from a state of uprightness, “changed defined as: state,” “evil” is “having while bad wicked.” morally corrupt, bad moral qualities, exhibiting I am to express, describes what attempting definition Either and civil conduct. criminal difference between wit, the a man can be branded a felon before this In category, left must have incarcerated,, path righteousness he and become “morally That transition is not corrupt.” legally *27 does; by what he it must be and presumed specifically alleged and either word would be sufficient in so charged, doing. “The constituents of a criminal offense at common law are an evil and an v. Labato, intention unlawful act.” State J. 137 7 N. One in the indict (1951). constituents here, absent, our decision, wit, ment to own to according evil so held intention. We in the above ease.
The indictment contains no and is there- such allegation fore, view, my defective. plainly reas'ons, Por these with plus to my inability agree that a majority relation to other law enforce- prosecutor, ment has a agencies, “primary for enforce- responsibility law,” of the criminal I ment would sustain the below. court J. The indictment for non- (dissenting). Oliphant, feasance with we which are here concerned consists of 19 counts. The first 16 counts are similar and basically proceed on the as assumption, does the majority opinion, Prosecutor of the Pleas of a which County, county Bergen of 70 municipalities consists officers, is having police with a primal duty a and officer charged police peace by 2:182-5 provides: R. S. which pleas powers “Bach shall be vested with the same subject penalties, county, attorney and to the same within his as the general by subject to, shall law be vested with or and he shall use diligence arrest, detection, all reasonable and lawful for the indict- against and ment conviction offenders the laws.” The first count the defendant charges with the public duty and and using exercising causing to used and exercised all proper, reasonable and effective and means all lawful means for preserving public peace and in the insuring good order said County of Bergen, all houses wherein suppressing disorderly gaming, betting, etc. were conducted and bookmaking, and for operated failing to enforce the this laws of relating Then gambling. alleges specifically gambling operation was con- at a ducted specified address during specified period that Walter G. Winne “well aforesaid knowing premises but law disregarding public duty so enjoined upon him, then and there continuously, unlawfully wilfully did neglect omit to the said perform duties and failed and omitted reasonable, to use all effective and proper, means within diligent as the Prosecutor of power Bergen County detection, arrest, indictment and conviction of a person or persons who and maintained kept the gaming house as aforesaid.”
The basic to be determined then is whether the question Prosecutor of the Pleas virtue of the of this provisions statute, 2:182-5, R. 8. has the re- primary dominant in the sponsibility assumes, as the county majority opinion detect and arrest any who violates of the criminal person statutes or the common law with respect crimes *28 in county which he has jurisdiction. The section in question
does two it invests him with the the things: power Attorney-General to, shall law be by invested with or subject secondly, that he shall all requires use reasonable and lawful detection, arrest, for the diligence indictment and conviction of offenders the law. against
'The primal case, for in this it must police duty argued conceded, was never in the Attorney-General. Attorney- General was the law enforcement originally principal officer insofar as the of the in prosecution this State was con- pleas cerned and it was not until 1822 the appointment in person prosecute each was authorized pleas county statute. by This in 1846,' statute Nixon’s appears Digest 52. But page -this statute is not the forerunner of the section here in as State contends. all question, During of time from the period of the adoption Constitution of 1776 up to 1874 the officers of this were peace State sheriff, and the various constables and policemen appointed in the various were municipalities. They with the charged primal duty police officers detection and arrest of violators of the law. criminal
As of the sheriff is today still all his com- possessed-of mon law as a which are powers police officer set specifically
forth at some in 1 length *344; Blacks lone Crimi- Chilly’s nal Lato *25. See the
ings 27, approved 1874, March effective 1, January 1875.
This revision of the criminal laws was compiled and ar- Chief Justice ranged by Beasley, Justice Depue Courtland Parker. In v. Freeholders Lindabury Ocean, 47 N. J. L. of
at Ct. Mr. page (Sup. 1885), Justice Depue stated: State, Lewis, pros. County, already “In cited, v. Hudson this court, obligation county defray it while affirmed the of the the expenses justice, regarded incurred in the due administration the obligation obligation merely, and, stood, a moral as as the law then obligation obligation, the was a moral in the sense that there was imposed duty legal duty any prescribed no statute which the a as determining paid. means for the amount that should be Hence the subject being court in that case treated the whole within the dis- expenses paid, cretion of the board as to whether such be should discretionary paid. left with the board as to the sum that should be To meet this condition of affairs section 100 of the Criminal Procedure passed. duty Act was That section enacts that ‘it shall be the prosecutor pleas county the of the for each to use all reasonable and diligence detection, arrest, lawful for the indictment and conviction against laws; necessary expenses of offenders the and all incurred thereby, judge approved by hand, presiding verified to and under his the Oyer Quarter of the Court and Terminer or General any county, paid by Sessions of the Peace for shall be the board of freeholders thereof.’ language quoted quite general. The of the section It is made prosecutor the of the' ‘to use all reasonable and lawful dili- gence detection, offenders,’ indictment and conviction of payment necessary expenses thereby’ enjoined of ‘all incurred upon the board of A freeholders. construction of the statute which provisions personal prosecu- would restrict tor, its to the efforts of the personal expenses, authority employ and his without other discharge duty, means and instrumentalities to him in aid of his expense thereby, and to incur would be too narrow to effect the legislative purpose. prosecutor On such a construction the would diagram prepared, not be able to a have nor to a have chemical analysis made, employ detective, nor to with assurance that expense necessarily thereby paid. incurred would be Such a per- construction would leave to a an excuse for lax duty, authority requisite formance of that he had no to incur the expense. plain upon intent of the statute was to confer prosecutor authority provide reasonable means to him in aid performance duties, guaranty of his official with a necessary expenses paid; incurred should be and it was left to the approval presiding judge court the certificate and to deter- employed, necessity mine the the reasonableness the means and the expenses incurred.” His remarks that a construction statute which would restrict its to the provisions personal efforts of the prosecutor at his personal would expense narrow, be too do not permit the inference that the enactment of the statute it was intended to impose primal dominant duty of a police peace officer prosecutor of the pleas. That would indeed unreasonable interpretation in view of the historical situation that existed where the sheriff was the *30 of and the officer the local
principal peace county policemen duties munici- had the in the primal police constables palities.
The the on a fee based of worked basis pleas prosecutor 1877 when and it was not until and indictments upon pleas 97, was 1877, 65, L. that the the by prosecutor pleas c. of p. act as a authorized person some suitable “appoint arrest, detection, con- the indictment and officer special for laws; such so ap- the person viction of offenders against rights, subject all the and be shall pointed, possess powers police any to all constables and obligations the officers * *” * state county supplied). this (Italics opin- the on the nor the majority Neither argument, that such ion, statutory imposes to a points single provision the one here in a the duty prosecutor except question. the mentioned is forerunner of the just The 1877 statute various for detectives statutory provisions prosecutors’ in B. 2 :181—1 et and these now found S. investigators seq., “all are these sections the by given rights detectives sheriffs, constables and deputy police powers special officers.” it was until 1878 here that right
It be noted should the 1878, 99, 165, L. the p. prosecutor pleas c. a a rather than put salary was basis in certain counties on arise in fee should question immediately basis. there was no provision prose- that since one’s mind the a fee for arrest and detection cutor on basis paid to be could the have intended to Legislature of criminals police duty upon prosecutor primal have imposed made for remuneration? no provision when pleas 100 of the 1874 criminal Now, was intended section if it should pleas charged prosecutor revision that State, county why, primal police with' the County, did court come to the Lewis Hudson supra, on his pleas that where conclusion expenses such detection of crime or volition incurred individuals, duty was moral one the arrest of ? if it was a one Because duty, than a legal legal rather *31 money the appropriate was bound to board of freeholders prosecutor the such when necessary requested for work so- this for the enactment of and be reason there would no are the so incurred 100 expenses called section whereunder a me that It seems to the court. approval to the of subject in view enacted, act, this as originally clear of reading duties and the various all then existing the historical facts with the preserva- officers peace charged of other police law, the requires enforcement of tion of the and the peace discretionary. the so duty imposed purely that that defendant The the the State in concedes argument the his duties a performance was officer gwasi-juducial The seems the use of wide discretion. required indictment, that as the readily prosecution concede insofar law offenders are concerned against and conviction of is a discre- pleas that of the duties a that tionary argued prose- it could not be Certainly one. a in the absence of motive right corrupt cutor has no an indictment. pros nolle
The “indictment” and “conviction” occur words “arrest” “detection” and same series of words with the words maxim a sociis and it seem me that noscitur would that maxim conclusion represents would this apply, act, mat- its subject entire coirsidering language intent, ter, and the available evidences the legislative with that the of the court must consistent interpretation 2 Sutherland Construc- legislative purpose. Statutory tion, section 4908. indictment, on the opinion, proceeds
The and the majority the stat- that as to conviction assumption prosecution but as to and arrest utory provision discretionary detection primal it is insofar as is concerned. mandatory police this distinction should not be read into the Such basic of a clear expression statute absence of legislative intent. enacted, Statutes, the statute was Revised
When originally 100, 237, it consisted of two page section clauses. set the general duty first clause forth now found in R. 8. 2:182-5 and the second clause provided pay- ment of expenses incurred on by prosecutors of pleas approval of the and Terminer Judge Oyer or General Quarter Sessions, now R. 2:182-7. The S. statute should be read aas whole, the mere fact the revisors of the statute separated into two sections does not change original legislative intent.
I therefore conclude that it was not the intent legislative the prosecutor of the was pleas vested with primal police arrest and powers original detection of crime was conferred the common law on the sheriffs and by various other statutes sheriffs, constables, on deputy police *32 and officers county detectives. If he then has such power he is or primarily dominantly for and responsible keeping preserving in each and munici- peace county every and I do not think that pality, such was the intention enactment in 1874. original The prosecutor cannot the local pleas give policemen orders. If he has of violations and calls their knowledge and refuse help they or avoid their adamantly performing then he duty, can them proceed indictment or against but to presentment, he has a say over primary responsibility and above their omissions derelictions arrest duty detect crime him a county places upon which he could not enforce or out possibly with the carry forces at his powers command. personal Superior Court Judge Hughes dismissing based the dismissal principally want of upon any allega tion that the defendant acted or with evil motive. corruptly In the two cases where have been prosecutors indicted in this State, in each indictment were they with charged doing and with evil intent. v. things corruptly State 88 Jefferson, N. J. L. 447 Ct. affirmed (Sup. 1916), 90 N. J. L. 507 & A. Bolitho, State v. 103 J. L. (E. 1917); N. 246 (Sup. Ct. affirmed 104 N. J. L. 1927), 446 & A. (E. 1927). State
The has cited cases where a prosecutor or attorney has prosecuting been indicted for nonfeasance under facts circumstances here All the presented. cases on, some of which are they rely from in the quoted majority are opinion, causes where a attor- prosecuting ney or some other officer was removed from officein a removal which is an different an proceeding, situation from entirely indictment for a crime. In such a proceeding respond- ent only loses his office and the thereof. These perquisites are of minor when with the consequence compared penalties which are on a conviction for a crime. imposed
What we are concerned with here a at criminal offense law, common and the are an constituents of such an offense evil intent and unlawful Labato, act. State v. N. J.
(1951). situation is likewise different where the crimi nal offense is based may, a statute. The Legislature will, if it make an act criminal without to criminal regard intention; hence it has been held in the absence of statute, criminal, words the act there express making must be a in the indictment the offense was charge committed with an evil intent or 1 Russell on unlawfully. Crimes, 49; 132; Crimes on section State Bishop Statutory v. 39 N. J. L. 423 Ct. Startup, 1877). (Sup.
The State’s contention is that it is not to assert necessary motive or evil intent for failure to act or to corrupt sup- port indictment for nonfeasance on they rely largely from the Jefferson, supra, they opinion excise sentence as particular follows: *33 “Indeed, agreement, payments receipts an such or even such of
money which, malfeasance, were not essential the offense of doubt, might fully personal without reasons of be as committed for political favoritism or for all.” reasons or for no known reason at There the indictment was for malfeasance and there was a in of the not to consideration corrupt agreement prosecute of There was no in that indictment payment money. charge Case, 772, Court of mere nonfeasance. State vol. (See Errors and Appeals page 29). Briefs But aside from this difference in the two cases certainly or for money act done of the for any pleas 192
personal favoritism or reasons which would result political' in the indictment any or conviction of or the person acquittal of a would a guilty person be an act done with corrupt motive or evil intent. I do not think that could be argued Garrison, by anybody. As to of Mr. Justice “for phrase all,” known if no reason at it means for it seems anything, dicta, to be it be to mean gratuitous only can interpreted no one that reason was the direct established expressly court, evidence before the but all the and circum- from facts an stances motive could inference or evil intent corrupt drawn. be
Erom time immemorial a common law crime consists of elements, a two of criminal intent and a charge description of the criminal The act. authorities above referred to are only authorities cited even by the State that are par- persuasive a tially their support argument corrupt or evil motive intent is not of the the crime essence of malfeasance or nonfeasance. cases L. Donovan, N. Ct. (Sup. J.
1945), the director of the involving police which department, has department prime peace as officers and authority arresting officers municipality, McFeeley, State v. N. J. L. 102 Ct. are not in In the (Sup. 1947), point. case the of the raid McFeeley indictment was that had a gist been made certain gambling place paraphernalia been had confiscated but no effective had taken steps been the arrest and operators who prosecution place not even were arrested. apparently Certainly corrupt motive or evil intent could out such spelled from facts and circumstances. said
Here should be that the record of indictments and taken pleas County present since Bergen investigation, started under the direction of the Attorney-General proves of doubt beyond peradventure gambling business was and the con- rampant county, organized follows that such a necessarily clusion situation was the of the failure of the 887 result officers of police peace their under the law. county perform
193 It seems to me that the breakdown of law enforcement in Bergen County is.on the of the doorstep police department in the original oyer instance. It is an statement to argue, does, as the State that the will State be virtually powerless in the face laxness, indifference on opposition part of the prosecutors of the This to me is in pleas. nonsense view of the tremendous number of and peace policemen' we officers have in this who have the primal duty to enforce the laws to make the original arrests.
True, the counts, indictment in this 19 case contains similar, of which are but the number of counts add nothing to the of the indictment, if the validity because first count is invalid in law mere fact there are 16 others of similar will make import out a crime on the part prose- cutor of pleas. the first indictment, count of the it seems
Examining to me that essence of this count is that the had primal police duty, secondly that the defendant knew of the gambling operations on a on the specified premise forth; date set particular but there is indication as no to how he knew. The statement the majority opinion, to the “according indictment the defendant received reliable information cases which the New laws of Jersey were violated,” relates being habitually to the last three only counts hereinafter discussed not-to the first 16. in the phrase first counts that the defendant “well aforesaid,
knowing premises but disregarding * * so by duties law him enjoined upon vague indefinite. If he did he not know did not have any duty n and if premises, the State he did know it alleges seems me order to make this valid they indictment should how and by what means he knew specify because is the alone, the one that he will have meet thing, on thing And, the trial of the case. while admit the they defendant can such information bill it get particulars, seems to me that when such a fact is very essence it is necessary such facts plead specifically because the existence of these facts that the element *35 of the breach of is Not should duty only alleged. that he knew indictment how he knew but charge specifically that was used for a resort. place being gambling In knew case, of the raid McFeeley they because supra, clear, and that here the situation is different.' entirely was but It an officer with one to thing ordinary police charge crime, of the a it is an entirely commission of but knowledge generally different to a thing charge prosecutor pleas with and all committed in his crimes knowledge An is in an officer county. ordinary policeman peace different far duties are as as his concerned. entirely position He is in of a area under the specified' duty and is charge to and it patrol inspect so as to physically preserve peace order, and if he fulfills he is these duties as preserve do, law that by then of course can be assumed required if these violations were would come within they occurring his observation or if he were at all No knowledge diligent. such the statute on the duty by policing imposed of the information as he receives prosecutor Such pleas. with to the must come respect crime through commission channels, various sources matters referred (1) police (2) to the the local jury by grand magistrates, (3) complaints him, with information that he receives from filed (4) his assistant prosecutors county detectives or people ap- him make -such as he deems pointed by investigation Insofar as his subordinate are con- necessary. employees cerned, it must did their lawful presumed they duty the absence of an that were in their they allegation failing duty instances knew and was specified it. In this I aware of consider the indictment respect defective for to state the sources of failing knowledge upon which the breach of rests. alleged contends that the use in the indict- majority opinion ment “unlawfully phrase wilfully” negatives exercise the defendant of faith. will Such good phrase a criminal where the support complaint Legislature made has not a criminal intent the essence of a crime statute to, before adverted but where a criminal intent or corrupt it must be alleged is the essence of a crime motive “unlawfully that say and it is not enough of good the defendant the exercise by wilfully” negatives faith. that most seems to concede
The majority opinion indict- authority supports proposition reputable the defend- must law offense allege ment for common an official duty; and declines willfully, corruptly neglects ant such com- it draws contra-authority reliance on some but in Jefferson, the remarks from fort as can be gotten *36 to I feel are not above, applicable which discussed supra, indictment. this 10 N. J. 362 Weleck, (1952), v. I
While dissented from entirely that that situation is distinguishable I think what as to there was no question the instant case for there involved was was, questions and one of duty the general related reasonably thereto or duties incidental whether other in the indictment. be set forth thereto should Weleck, supra, relies on State majority opinion The I under agree here consideration the indictment support statute, law, are whether duties imposed that where out of law, charter or municipal arising or special private itself, need not be duties nature of office the very indictment, I not feel but do set forth specifically in that ease which I consider a statement bound by myself as follows: on page reading and found dicta attorney duty alleged borough argument that “The the second duty prescribed by law but a mere not a of office in the indictment principle untenable. of behavior is likewise ethical limitation regulate imposed by law to If a officer under no were principles, then conduct in accordance with basic moral his official principles indict- and still be immune from he could violate such recognize prosecution no ment in office. We misconduct public office.” such of morals from the duties of divorce the same law and are not morality thing. Criminal if it is not too broad entirely above statement quoted involves that the moral conduct limited to proposition than malum prohi- that is malum se rather per something bilum. Then within reasonable limits it is true that there are certain violations of moral law about which there can be no possibly dispute which all can upon agree are they to the duty incident office where the rule any might be but there applied, are other of morals principles and ethics about which can differ and on which theologians have they carried on their art of over the cen- disputation In turies. this field the of the moral proposition rightness is one wrongness which there is a gambling great difference of There line opinion. is one thought malum, itself is gambling se, not per under certain except extreme circumstances. There is line another of thought which considers it malum se under per all circum- stances. In this State forms of are many malum gambling prohibitum. It seems to me it is not the function of this court to whether attempt spell out a certain act is malum se or per malum prohibitum. an act Many bemay morally yet be a crime. And in wrong, all practically situations whether question act should become malum prohibitum is strictly within the function of the and not of Legislature this court. On such a proposition have the people right heard their elective through in our representatives form of and it would government, be an unusual proposition *37 to assert that a court has the duty its decisions through moral or ethical rules promulgating supplement omission, deliberate otherwise, or on the of the part Legis- lature in defining certain acts of commission or omission on of the part citizens as malum prohibitum. ’ This a is cause which it can well be said that the case of one man is the affair of all. single One may a bad get public reputation without ever committed having a crime. asked, It is too often “But what are you about? complaining now, toUp no man has been slandered good or hurt.” I make the that it is not a point whether question this is true false that the but of bad man reputation a is as important politically or as that juridically other. The law equal looks both with an on and the eye breach of the law purposes a trapping reputedly bad man involves the risk of civil liberties and necessarily be the may beginning of the end civil liberties for all. Hard make bad cases law.
I have concluded that the first 16 counts of the indictment are bad: (1) police is alleging primal imposed statute; prosecutor failure to pleas (2) motive; evil allege corrupt the failure to (3) state the source to the knowledge imputed prosecutor 'the alleged gambling violations. in the statement majority opinion, to the “according the defendant reliable received information of
cases in which laws of New Jersey were vio- habitually lated,” is inaccurate. There isn’t a in the single allegation first 16 counts what reliable information the concerning has. These counts the 19 prosecutor name alleged gambling houses, is and it three only last counts that indicated that the had certain complaints alleged about officials. corrupt from the different Single allegations counts of the indictment cannot inference transposed by counts into other of the indictment to sustain such counts.
As three indictment, to the last counts in the I concur in and conclusions of reasoning Judge below where Hughes he held that the statement in the indictment that the prose- cutor received that certain complaints officials were “corrupt in law, officials” meaningless vague uncertain and it is a mere and is epithet lacking definiteness to sustain a valid necessary indictment.
I would affirm below. judgment For reversal —Chief Justice and Justices Vanderbilt, and Brennan — 5. Burling, Heher, Jacobs Oliphant For and Wachenfeld — 2. affirmance—Justices notes 452. Digest, Elmer’s page There is in the nothing statutes these common abolishing law duties of sheriff, so I have come to the conclusion that he still has the as a primal power officer police peace in the where county, necessary, to arrest one on criminal charge. Such was the state of the law when the statute predecessor R. S. 2:182-5 was enacted law. originally by This stat- ute was not enacted for 1898, the first time in as suggested inor and the majority opinion, section does not reflect, as the majority contends, a legislative response law problems of enforcement that were reflected in the rapidly State, of the increasing population in the com- plexities of life in many urban communities and in the need for the concentration of authority county for the detection, arrest and indictment of criminals. This State was a rural distinctly when this community statute was enacted and originally none of the reasons urged support of the construction on the placed statute majority inwas existence at the time. The section first and was appeared enacted in the Revision 1874. The statute enacted is not found in the laws because it was part revision authorized in 1871 and known popularly as the “Eevision of 1877.” The particular section is found in the “Eevised Statutes” 187A-1875, page 237, section which revised statutes were enacted by an act title: having “An act following proceed- regulating cases,” criminal