In Re Caruba.

• Decision Date: 29 January 1947
• Parties: In re CARUBA.
• Court: New Jersey Court of Chancery

51 A.2d 446

In re CARUBA.

Court of Chancery of New Jersey.

Jan. 29, 1947.

COPYRIGHT MATERIAL OMITTED.

Proceeding in the matter of the criminal contempt charged against Robert Caruba.

Defendant found guilty as charged.

Syllabus by the Court

1. Chancery Rule 128(d) is a general reference to Vice Chancellors of applications to punish for contempt of Court, both civil and criminal.

2. Perjury by a witness in a cause in Chancery is a direct contempt of Court. Direct contempts and contempts in facie curiae are practically synonymous.

3. Perjury or false swearing may be punished as a contempt of Court notwithstanding an indictment for perjury as a crime will also lie.

4. Where the contempt involves a public injury or offense, it is criminal in its nature, and the proper remedy is committal-but where the contempt involves a lic injury or offence, it is criminal in its nature, and the remedy is either attachment or committal.

5. Recantation or retraction of false testimony by a witness does not purge the contempt, but it may be considered in mitigation of the penalty.

6. The essence of contempt is that it obstructs or tends to obstruct the administration of justice. Actual obstruction is not essential to the offense.

7. Chancery Rule 93 authorizes references by Vice Chancellors to Masters in Chancery to take proofs. Rules 94 to 99 inclusive outline the procedure before Masters in Chancery.

8. The power of the Chancellor to make references to Masters in Chancery is as old as the Court itself, and the power to make references to his Vice Chancellors, who are head-masters of the Court, is of like antiquity.

9. When a cause in Chancery is heard by a Vice Chancellor pursuant to a reference by the Chancellor, and when a Master in Chancery hears such a cause or sits to take proofs pursuant to a reference by the Chancellor or a Vice Chancellor, the Vice Chancellor or Master is, pro hac vice, the Chancellor and the Court of Chancery.

10. The term ‘in the presence of the Court’ has always been given a liberal interpretation. The Court is present wherever any of its constituent parts is engaged in the prosecution of the business of the Court according to law.

11. False swearing, or perjury, before a Master in Chancery acting pursuant to a reference by a Vice Chancellor is a contempt in facie curiae12. Contempts committed before Masters and others to whom judicial or quasi-judicial functions are delegated have always been properly cognizable and punishable by the Court to which they were attached.

13. The Legislature is powerless to impair the jurisdiction of the Court of Chancery or any other constitutional Court.

14. All Superior Courts of record, civil and criminal, possess inherently and independent of statutory authority, the power to punish for contempt.

15. R.S.2:15-1 and R.S.2:15-12, N.J.S.A., are unconstitutional insofar as they may be claimed to delimit the inherent jurisdiction of the Court of Chancery in applications to punish for contempt of Court.

Meyer E. Ruback, of Newark, for the Court.

Thomas J. Brogan, of Jersey City, and Jacob L. Newman, of Newark, for defendant-respondent.

BERRY, Vice Chancellor.

This is an application to punish for criminal contempt pursuant to Chancery Rule 128(d), N.J.S.A. tit. 2. The facts have been stipulated and on the day set for the hearing of the cause the defendant pleaded ‘not guilty’.

The defendant is charged with having testified ‘falsely, deceptively and perjuriously’ while under oath as a witness before Augustus C. Studer, Jr., one of the Masters of this Court, to whom a reference was made in a cause therein pending for the purpose of supervising certain examinations and inspections by the complainant of books, records, documents, &c., in the possession of the defendants in said cause; and for the purpose of taking the testimony of witnesses who should be subpoenaed to testify before said Master. The alleged false testimony is set forth in detail in the petition filed herein, but I deem it unnecessary to recite it here; suffice it to say that it constitutes the baldest and most flagrant piece of perjury that has ever come to my official notice in my more than a quarter of a century of service in the judiciary of this state. The testimony and its falsity were both admitted by the defendant at the hearing on the return of the order to show cause herein, both orally through the defendant's counsel and by the filing of the aforementioned stipulation, and, without going into unnecessary detail, I may say that the false testimony was quite material to the issues in the cause in which it was given. It also involved the partial destruction and mutilation of documentary evidence in the cause.

The false testimony referred to in the petition filed herein was given on April 2 and May 2, 1946. It did not consist of an answer to a single question, but was made up of a series of deliberate falsehoods. On April 2nd, the defendant was questioned about a $250.00 check of the Imperial Fur Blending Corporation, of which company he was secretary and treasurer. The check was drawn to his order and signed by him. The answers to at least a dozen of the questions concerning this check were admittedly false. At a later hearing before the Master on April 5, 1946, the defendant admitted the falsity of this testimony. On May 2nd, he was examined with reference to a check of the same company for $800.00, drawn to the order of M. Reiner & Bro. and signed by the defendant. This examination, reproduced from the transcript of the stenographer's notes, occupies more than a dozen pages of the petition filed herein and is a tissue of lies. The answers to at least forty of the questions put to him during the course of the examination touching this $800.00 check were deliberate falsehoods. All of this false testimony was given in a patent attempt to deceive the court and to obstruct the course of justice.

That perjury or false swearing is a contempt of court and may be punished, notwithstanding an indictment for perjury as a crime will also lie, see Seastream v. New Jersey Exhibition Co., 69 N.J.Eq. 15, affirmed 72 N.J.Eq. 377, 65 A. 982; Edwards v. Edwards, 87 N.J.Eq. 546, 100 A. 608; Sachs v. High Clothing Co., 90 N.J.Eq. 545, 108 A. 58; Backer v. A. B. & B. Realty Co., 107 N.J.Eq. 246, 152 A. 241; Zettler v. Zettler, N.J.Ch., Chancery Docket 95, p. 592 ¹ ; In re Rosenberg, 90 Wis. 581, 63 N.W. 1065, 64 N.W. 299; In re Steiner, D.C., 195 F. 299; 12 Am.Jur. 400, Title ‘Contempt’, Par. 17. Indeed, false swearing on which a charge of contempt is based, need not be sufficient to constitute perjury. 17 C.J.S., Contempt, § 24, p. 32; Young v. State, 198 Ind. 629, 154 N.E. 478; People v. Freeman, 256 Ill.App. 233. And a party to an action is held to a stricter accountability for a contempt than a stranger. 12 Am.Jur. 394, par. 7.

In Chamberlyn's ‘Modern Law of Evidence’, Vol. 1, p. 304, Sec. 249, the text is as follows: ‘Of possible acts, few are so antagonistic to the objects of judicial administration as the intentional false swearing which seeks to baffle the search for truth, without which justice is impossible. Such swearing is a flagrant insult to the dignity of the court; and the same offense is committed by an attorney or other person who procures the giving of the perjured testimony. The nature of the subject-matter of the false evidence may affect, according to its importance or consequence, the action of the court in awarding punishment. False swearing as to the disposition of property stands in a different position from more important matters. But the offence, regardless of the materiality of the evidence given, may properly be dealt with as a contempt.’

Pursuant to stipulation between counsel the complete file of the cause in which said false testimony was given, together with a complete transcript of all the testimony taken in said cause, was admitted in evidence at the hearing on this application, subject to defendant's objection of immateriality. They were admitted because in no other way could the issues of the main cause be adequately shown, and the relation of the false testimony to those issues, and its materiality, be sufficiently demonstrated. Berkson v. People, 154 Ill. 81, 39 N.E. 1079.

Notwithstanding defendant's admission of the charge of giving false testimony, and of the mutilation and attempted concealment of documentary evidence as set forth in the petition filed herein, he has, as already stated, entered a plea of ‘not guilty’. His defense to the charge is more or less technical and may be epitomized under the following heads:

1. Recantation, as a result of which there was no obstruction of justice.

2. Contempt, if any, was not in facie curiae, and therefore not cognizable before me as Vice Chancellor.

3. Lack of jurisdiction.

I shall consider these defenses in the order above stated. Italics are mine throughout.

1. Recantation, and Non-Obstruction of Justice.

The argument in support of this defense is that the defendant, before the case in which he testified was closed, admitted that he had testified falsely, and then told the truth; and that as a result of his recantation or retraction the Court was not deceived and there was no obstruction of justice, therefore no contempt. In support of this proposition counsel for defendant cites People v. Gillette, 126 App.Div. 665, 111 N.Y.S. 133; United States v. Turk, D.C.N.Y., 10 F.Supp. 957; In re Michael, 326 U.S. 224, 66 S.Ct. 78; 28 U.S.C.A. § 385; In re Gottman, 2 Cir., 1941, 118 F.2d 425; and a few other cases from other jurisdictions on the subject of recantation; and In re Jibb, 123 N.J.Eq. 251, 197 A. 12; Backer v. A. B. & B. Realty Co., supra; Sachs v. High Clothing Co., supra; In re Ries, 101 N.J.Eq. 315, 138 A. 586; Ivens v. Empire Floor & Wall Tile Co., 119 N.J.Eq. 273, 182 A. 255; In re Singer, 105 N.J.Eq. 220, 147 A. 328; and Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, 11 A.L.R. 333, in...