State v. Borg

Decision Date07 January 1931
Docket NumberNo. 211.,211.
Citation152 A. 788
PartiesSTATE v. BORG et al.
CourtNew Jersey Supreme Court

John Borg and another were accused of conspiring to defraud the State, and they move to quash the indictment.

Motion to quash granted.

See also 150 A. 189, 8 N. J. Misc. R. 349; 151 A. 909, 8 N. J. Misc. R. 705.

Argued October term, 1930, before CAMPBELL and BODINE, JJ.

Carey & Lane, of Jersey City, and Mackay & Mackay, qf Hackensack, for appellant Borg.

Samuel Denson, of Hackensack, for appellant Rosenberg.

Edward O. West, of Hackensack, for the State.

PER CURIAM.

A motion was made to quash the following indictment presented into the Bergen oyer and terminer March 18, 1930:

"Bergen County, to wit: The Grand Inquest of the State of New Jersey in and for the County of Bergen, upon their respective oaths, Present, that John Borg and Charles Rosenberg late of the City of Hackensack in the said County of Bergen on or about the eighth day of February in the year of our Lord one thousand nine hundred and thirty at the City aforesaid, in the County aforesaid, and within the jurisdiction of this Court, did wickedly, maliciously, fraudulently, corruptly, falsely, knowingly, wilfully, and unlawfully combine, unite, confederate, conspire and bind themselves by agreement to deprive, cheat and defraud the State of New Jersey of the sum of two hundred thousand ($200,000.00) dollars, lawful money of the United States of America, to which sum of money the State of New Jersey was then and there lawfully entitled and in pursuance of such wicked and unlawful conspiracy the said Charles Rosenberg did refuse and cause the refusal to pay a valid and lawful draft or check of the Treasurer of the State of New Jersey in said amount of two hundred thousand ($200,000.00) dollars lawful money of the United States of America.

"Contrary to the form of the statute in such case made and provided, against the peace of the State, the Government and dignity of the same.

"Edward O. West, Prosecutor"

The motion is based upon two grounds: First, that the indictment is insufficient upon its face; and, secondly, that it was the result of bias, prejudice, passion, and malice.

The indictment is obviously insufficient upon its face. John Borg, one of the defendants, was the editor and publisher of the Bergen Evening Record; while Charles Rosenberg was a director and chairman of the board of the Little Ferry National Bank.

The state seeks to justify the indictment as one at common law and not under section 37 of the Crimes Act. 2 Comp. St. p. 1757. A conspiracy between the editor of a newspaper and a banker to defraud the state of a large sum of money should not be lightly made nor vaguely couched. In State v. Young, 37 N. J. Law, 184, and Madden v. State, 57 N. J. Law, 324, 30 A. 541, indictments against public officials for conspiracy at common law were sustained as sufficient, and upon these two cases the state relies. Had the draftsman of the present indictment exercised the same care as was taken in those cases, the principles of law there enunciated would have been pertinent.

In State v. Young, supra, the principal averments were as follows: That certain persons named therein were commissioners to estimate damages to be sustained by owners of lands and real estate which the mayor and common council had then and there determined to take for the opening of South Fourteenth street, in the city of Newark; and that said Young was chairman of said commissioners; that one was the owner and possessor of a certain lot, a description of the same being set forth. The charge of conspiracy was in these terms: "And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said * * * chairman of the said commission, and the said * * * being then and there an alderman * * * did wickedly, falsely, fraudulently and unlawfully conspire, combine, confederate and agree together, to cheat and defraud the said city." The overt acts are then set forth with particularity so that the part played by the conspirators was apparent.

In Madden v. State, supra, the substance of the averments were as follows: That the defendants being street and water commissioners of Jersey City did conspire to cheat and defraud Jersey City of its moneys by certain means particularly specified.

The present indictment contains mere general allegations. It nowhere states that Charles Rosenberg was under a duty because of an office, or otherwise, to pay the draft of the state of New Jersey. Nor does it particularize concerning the draft, nor does it contain any description thereof so that the same can be identified. Obviously, citizens in general are under no duty to pay the drafts of the state, and if Rosenberg was under a duty to pay a particular draft, the facts and circumstances should be pleaded so that he and his alleged coconspirator can know the nature of the offense charged.

"The indictment should contain such a specification of acts and descriptive circumstances as will on its face fix and determine the identity of the offense, with such particularity as to enable accused to know exactly what he has to meet, to give him a fair and reasonable opportunity to prepare his defense, and avail himself of a conviction of acquittal as a bar to further prosecution arising out of the same facts." 31 Corpus Juris, 661.

"A person indicted for a serious offense is presumably innocent, and the sufficiency of an indictment must be tested upon the presumption that he is innocent and has no knowledge of the facts charged against him." 31 Corpus Juris, 663.

In State v. Allgor, 78 N. J. Law, 314, 73 A. 76, the court said: "Want of certainty in the statement of the offense is therefore the vice of this indictment, and at common law the rule is fundamental that an indictment must be certain in its allegations, so that it can be seen upon inspection, not merely what nature of crime, but what particular crime, is intended to be charged. 2 Hale, P. C. 193; Rex v. Juddis, 1 East, 314; State v. Middlesex Traction Co., 67 N. J. Law [38 Vroom] 14, 50 A. 354; United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Morris & Essex Railroad Co. v. State, 36 N. J. Law [7 Vroom] 555."

In Wood v. State, 47 N. J. Law, 461, 1 A. 509, 511, members of the board of chosen freeholders of Camden county were indicted for a conspiracy to defraud the county by directing the payment of $160 to a man named Morgan. Justice Reed said: "The charge is that they unlawfully conspired to get into the hands of one Morgan a sum of money. It does not say that Morgan was not entitled to a sum of money. Nor does it charge that the defendants knew that he was not entitled to it. The charge that they, wickedly devising to unlawfully obtain this money, etc., is meaningless when the details of the conspiracy are set forth, by which it does not appear that the person who was to receive the fund was disentitled to it, or that the defendants supposed that he was without right to be so paid."

Prom the deposition taken on the rule, it appears that at the time the indictment was found there was no deposit of state funds in the Little Ferry National Bank. An...

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