State v. O'brien

• Decision Date: 16 September 1947
• Docket Number: No. 215.,215.
• Citation: 136 N.J.L. 118,54 A.2d 806
• Parties: STATE v. O'BRIEN et al.
• Court: New Jersey Supreme Court

136 N.J.L. 118

54 A.2d 806

STATE

v.O'BRIEN et al.

No. 215.

Supreme Court of New Jersey.

Sept. 16, 1947.

Robert A. O'Brien and William P. Black were charged with conspiracy; Robert A. O'Brien, William P. Black and M. James McLaughlin were charged with conspiracy; and Robert A. O'Brien was charged with misconduct in office, and separate writs of certiorari were issued as to each indictment, which writs were consolidated. On defendants' motion to quash indictments.

Writs dismissed and motion denied.

May term, 1947, before CASE, C. J., and BURLING, J.

Horace K. Roberson, Prosecutor of the Pleas in and for the County of Hudson, of Bayonne, and William P. Gannon, Asst. Pros., of Jersey City, for the State.

Frank G. Scholsser, of Hoboken, for defendants-prosecutors.

CASE, Chief Justice.

The motion is to quash three indictments returned by a Hudson County Grand Jury, one of them against Robert A. O'Brien and William P. Black for conspiracy, another against those two and M. James McLaughlin for conspiracy, and the third against Robert A. O'Brien, alone for misconduct in office. A separate writ of certiorari issued as to each indictment. The writs were consolidated, after return, to be prosecuted as a single case, and this motion ensues.

First as to the conspiracy indictments: Robert A. O'Brien was a public official. He was clerk and executive assistant to the Board of Tax Commissioners in the Department of Revenue and Finance of the City of Jersey City. William P. Black also was a public official. He was the deputy collector of taxes in and for the City of Jersey City. Those two holders of public office in the laying and collecting of Jersey City taxes, so indictment No. 318 charges, wickedly devising and intending unlawfully and fraudulently to enrich themselves and to defraud the city, bound themselves together to obtain sums of money unlawfully and by cheating the city, whose officials they were, of tax moneys by causing taxes levied on real property to be unlawfully reduced. There were other words charging intent, corruption and conspiracy, but such is the purport of the conspiracy charge.

The indictment enumerates 33 specified instances-overt acts-wherein that conspiracy was given effect and was manifested. One of those detailed instances is that O'Brien, without the concurrence of the Board of Tax Commissioners, whose clerk and executive assistant he was or of the city assessor on January 7, 1941, in furtherance of the conspiracy and to effect the object thereof, caused to be executed and filed a stipulation with the New Jersey State Board of Tax Appeals agreeing to a reduction in the amount of $400 in the 1939 assessment of a property assessed against the Hudson City Savings Bank and that the State Board render judgment accordingly. Another was a like incident on January 7, 1941, with respect to the 1940 assessment on the same property with the same owner, the reduction being $1,500. Another was for a like incident on the same day so to another lot but with the same owner whereon the reduction was $200. Thus, incident by incident, fully detailed, the indictment sets up 33 instances in which O'Brien in the years 1941 and 1942, in furtherance of the conspiracy and without the concurrence or authority of the city assessor or of the Board of Tax Commissioners, filed consents with the State Board of Tax Appeals agreeing that that body should enter judgments reducing assessments, levied against the Hudson City Savings Bank. The indictment proceeds to enumerate three further overt acts alleged to have been in furtherance of the conspiracy, namely, that the said William P. Black did receive and take from Hudson City Savings Bank, on July 15, 1940, $500 for his services rendered in securing the said tax reductions; so $500 on July 14, 1941, as like compensation; and, so, $500 on July 14, 1942, as like compensation.

Indictment No. 70 is directed against the same two public officials and also M. James McLaughlin, a sub-assessor for the Board of Tax Commissioners in the Department of Revenue and Finance of Jersey City, and with similar words of illegality, intent, fraud and corruption the charge is that the three conspired to cheat and defraud the City of Jersey City of its moneys derived from taxation. The indictment sets up four overt acts. First, that McLaughlin, on December 1, 1943, in furtherance of the conspiracy and to effect the object thereof, caused to be issued and recommended an authorization to revise the 1944 assessed valuation of certain specified real property owned by the said Black in the sum of: Land $6,400, Improvement $4,000 a total of $10,400; said revised assessment being a reduction from the 1944 assessment which had been recommended by the Board of Tax Commissioners in the sum of; Land $6,400, Improvement $8,200, a total of $14,600. Second, that O'Brien, on December 9, 1943, in furtherance of the conspiracy and to effect the object thereof, approved, in writing, the said authorization. Third, that O'Brien, on December 9, 1943, in furtherance of the conspiracy and to effect the object thereof, willfully, unlawfully and corruptly failed, neglected and refused to notify and call the attention of the Jersey City Board of Taxation, at its reguar meeting held on that day, to the said authorization and O'Brien's approval of the same. Fourth, on January 8, 1944, O'Brien, Black and McLaughlin, likewise in furtherance of the conspiracy and to effect the object thereof, caused to be modified, erased and changed the official figures of the siad assessment, namely, Land $6,400, Improvement $8,200, as approved, advised and recommended by the Board of Tax Commissioners of Jersey City and appearing as such in the official tax lists for the year 1944 to read and appear to be assessed with the approval, advice and recommendation of the said board as Land $6,400, Improvement $4,000; all contrary to the form of the statute in such case made and provided and against the peace of this state, the government and dignity of the same.

The objections raised by defendants' brief to the conspiracy indictments are that neither indictment charges the statutory crime of conspiracy under R.S. 2:119-1, N.J.S.A.; that to be sustained at all the indictments would need to be rested on the common law, a course which, they say, is barred by the decision in State v. Borg, 152 A. 788, 9 N.J.Misc. 59; that there is no charge that the money paid Black by the bank was unlawfully paid or unlawfully accepted; that O'Brien is not charged with having received any of the money; that there is no charge that the owners were not entitled to the reductions or that the properties were undervalued; that Black's employment by the city did not disentitled him to a reduction; that if there was a cheat it was against the taxpayers and not against the city; that the bank has no stockholders and no motive for wrongdoing; that the bank and its president were not indicted; that Black had nothing to do with assessment and that the indictment does not charge him with wrongdoing in any of the overt acts; that in not making a specification of illegality, such as larceny or embezzlement, the indictments are lacking in reasonable certainty; that the indictments are ‘Vaguely couched’; that the defendants are not informed of the ‘nature and cause of the accusation’; and that the indictments do not conform to the rule of criminal pleading that they should contain a reasonably certain statement of the offense in order (1) to identify the accusation, lest the jury find a bill for one offense and the defendant be tried on another, (2) to inform the defendant of what crime he is called upon to answer, (3) to warrant the trial jury in acquitting or convicting the accused of the offense charged, (4) to permit the court to perceive and sentence for a definite offense upon the record, (5) to protect from double jeopardy. By express statement, the defendants do not make a point of the failure to allege and define the duties imposed by law upon them.

We accept as a basis of argument, without conceding its soundness, that the statute on conspiracy does not support the indictments, but we are not persuaded that the holding in State v. Borg is a bar to their status as accusations under the common law. We find no support for counsel's argument in the issues there determined. The indictment in that case was an exceedingly brief document of less than 25 printed lines. It charged that two men, private citizens, had conspired to cheat the State of New Jersey of $200,000 to which the State of New Jersey was then lawfully entitled, and that in pursuance of the conspiracy one of the two conspirators refused, and caused the refusal, to pay a check to the treasurer of the...