State v. Borrell, A--110
| Decision Date | 14 March 1955 |
| Docket Number | No. A--110,A--110 |
| Citation | 112 A.2d 548,18 N.J. 16 |
| Parties | The STATE of New Jersey, Plaintiff-Respondent, v. Frank N. BORRELL, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
James A. Major, Hackensack, argued the cause for appellant (Joseph H. Gaudielle, Hackensack, attorney).
Ralph L. Fusco, Deputy Atty. Gen., argued the cause for the State (Guy W. Calissi, Bergen County Prosecutor, Hackensack, attorney).
The opinion of the court was delivered by
The Bergen County grand jury on March 10, 1953 was continuing an investigation and inquiry about matters concerning official misconduct and corruption.
The defendant was and had been for 30 years the chief of police of Cliffside Park in that county and was called before the grand jury for interrogation. He was asked whether he had ever made an 'official inspection' of certain premises known as 452 Palisade Avenue, Cliffside Park, and denied ever having been there. In response to the following question, he gave a 'No' answer:
The defendant was subsequent indicted by the grand jury under N.J.S. 2A:131--4, N.J.S.A. for false swearing in answer to the above question. The pertinent part of the indictment recites:
'* * * Frank Borrell, being so sworn as aforesaid, did willfully swear falsely in substance and effect that he never made an official inspection visit to the premises 452 Palisade Avenue, Borough of Cliffside Park, County of Bergen and State of New Jersey, which statement the said * * * Frank Borrell then and there well knew was false * * *.'
At the trial, Stephen Toth, formerly an assistant prosecutor in Bergen County, testified that on November 2, 1945 he and the county chief of detectives went to Cliffside Park for the purpose of investigating certain addresses within that city based upon information they had received about gambling activities which were being carried on there. They had neither search warrant nor process of any kind.
First they went to Cliffside Park police headquarters to advise them of the inspection visits and to secure a local police officer to accompany them. Borrell was not at headquarters when Toth arrived but came in later and designated himself and Sergeant Hozer of the Cliffside Park police to accompany Toth and the county chief of detectives.
Toth told him:
Toth apparently was the only one who knew the addresses to be inspected.
' * * *
Their first stop, according to Toth, was at 452 Palisade Avenue, which was a two-story building having a store on the first floor, an entrance hallway alongside of it and an apartment above. He said the store was closed and all of the officers went into the entrance hall. The doors were locked and there was no response from within.
Toth copied the name on the mailbox and he and the officers returned to the street, where they peered inside the store and observed a desk and other equipment on the premises. They then left and proceeded to other addressed in the city.
Lennon, a witness for the State, testified over objection that 452 Palisade Avenue at the time in question was being used as part of Frank Erickson's bookmaking operations.
Another witness for the State, Delchop, testified his father and Borrell were cousins. Delchop's father was shown to have been the owner of the premises 452 Palisade Avenue, and Delchop testified over objection that he had collected rents from the tenant of the premises on behalf of his father.
Borrell, taking the stand in his own defense, testified on the day in question he had accompanied Toth while the latter was making an investigation of various addresses in Cliffside Park. He stated he had not been informed of the purpose of the inspection but gathered from his knowledge of such transactions that it was for the purpose of checking bookmaking activities. He flatly testified that on the day in question the group never visited 452 Palisade Avenue. His testimony was supported by Sergeant Hozer.
The jury returned a verdict of guilty, and from the judgment of conviction the defendant appealed to the Appellate Division. We granted certification on our own motion prior to argument there.
The defendant argues first there was error committed in the court's denying his motion for an acquittal at the end of the State's case and at the end of the entire case. The basis for the motion appears to be not so much a failure of proof as an alleged deficiency in the indictment. Although the indictment charges him with false swearing in that he said he had never made an 'official inspection visit' to 452 Palisade Avenue, nevertheless the indictment fails to allege in what capacity he was then acting or the nature of the 'OFFICIAL INSPECTION VISIT' WHICH HE Is charged with having made.
The indictment would probably have been more meaningful and more artistically drawn had it recited that the so-called official inspection visit had been made in the course of his duties as chief of police. But the record shows the defendant was fully cognizant his police status was referred to.
The responsibility of a member of the police department is tersely set forth in State v. McFeeley, 136 N.J.L. 102, 108, 54 A.2d 797, 801, (Sup.Ct. 1947):
"One of the fundamental duties of a police department, from chief of 'I am always on official duty 24 hours a lookout for infractions of the law and to use due diligence in discovering and reporting them, and in a proper case arresting the perpetrator and lodging and prosecuting a proper complaint."
The constancy of the defendant's official obligation is best expressed by his own views in the record before us. When asked if he was on official duty, he responded: 'I am always on officla duty 24 hours a day.' And again when he was queried: 'Were you on duty that day when you made these other visits which you have admitted?' he responded: 'I am always on duty, yes, sir.'
The sufficiency of an indictment is to be determined in the light of the pertinent rules of court and judicial decisions. The fundamental requirement of the instrument is to inform the the person charged of the nature of the offense lodged against him so he may adequately prepare his defense and at the same time be protected against another indictment for the same offense. State v. LeFante, 12 N.J. 505, 97 A.2d 472 (1953); State v. Winne, 12 N.J. 152, 178, 96 A.2d 63 (1953); State v. Rios, 17 N.J. 572, 112 A.2d 247 (1955).
The accused is possessed of a constitutional right to be informed by the indictment in certain, definite and understandable terms of the crime charged against him to enable him to prepare his defense and to be protected against double jeopardy. State v. Grothmann, 13 N.J. 90, 97, 98 A.2d 291 (1953).
In the case Sub judice the defendant was not charged with official misconduct but with false swearing, which is a statutory offense. The statutory language was used and explicitly apprised the defendant of the offense charged against him. State v. Doto, 16 N.J. 397, 403, 109 A.2d 9 (1954).
It cannot be successfully contended that the defendant here was in any way prejudiced by the failure to recite his official status in the indictment, nor can there be any doubt about his being placed in double jeopardy by reason of any vagueness exhibited in it.
The defect, if any, was a mere technicality and clearly comes within the scope of R.R. 1:5--1(b), which provides:
'No judgment given upon any indictment shall be reversed for any imperfection, omission, defect or lack of form, or for any error except such as shall have...
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