State v. Engels

• Decision Date: 24 August 1954
• Docket Number: No. A--295,A--295
• Citation: 107 A.2d 674,32 N.J.Super. 1
• Parties: STATE v. ENGELS. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 1

32 N.J.Super. 1

107 A.2d 674

STATE v. ENGELS.

No. A--295.

Superior Court of New Jersey.

Appellate Division.

Argued June 21, 1954.

Decided Aug. 24, 1954.

Julius E. Kramer, Hackensack, for appellant (Chandless, Weller & Kramer, Hackensack, attorneys).

Joseph A. Murphy, Asst. Deputy Atty. Gen., for respondent (Grover C. Richman, Jr., Atty. Gen., of New Jersey).

Before Judges JAYNE, STANTON and HALL.

The opinion of the court was delivered by

JAYNE, S.J.A.D.

The defendant was convicted on the first count of an indictment embracing four counts which accused him of wilfully false swearing in a judicial proceeding. N.J.S. 2A:131--4, et seq., N.J.S.A. The propriety of the procedure eventuating in the judgment of conviction is presented to us for appellate consideration.

Initially we examine the indictment. In each of the four counts it is alleged that on the date therein specified the defendant appeared as a witness before the grand jury of the County of Bergen and took an oath administered to him by the foreman of the jury that the testimony he would give would be the whole truth and nothing but the truth.

The following summary of the successive counts is sufficiently informational:

1. That on June 6, 1951 he 'did wilfully swear under oath in substance and effect that he was not a partner of Arthur Bakofen, also known as Artie Baker, which statement the said Charles Engels * * * then and there well knew was false.'

2. That on June 6, 1951 he 'did wilfully swear under oath in substance and effect that he never paid a sitter or telephone home owner to use a telephone for bookmaking purposes.'

3. That on May 31, 1951 he 'did wilfully swear under oath in substance and effect that he was not a partner of Arthur Bakofen * * * in the bookmaking business.'

4. That on March 24, 1953 he 'did wilfully swear under oath in substance and effect that he was not a partner of Arthur Bakofen * * * in the bookmaking business.'

At the trial the third count of the indictment was dismissed by the court. The jury acquitted the defendant of the allegations of the second and fourth counts and found him guilty of the false swearing charged in the first count.

The reason predominantly emphasized by counsel for the defendant to require a reversal of the conviction is that the first count of the indictment under which the defendant was found guilty fails to allege a crime. Particularly does counsel for the defendant draw our attention to the vital allegation of the count which reads: '* * * the said Charles Engles, also known as 'Junie' Engles, being so sworn as aforesaid, did wilfully swear under oath in substance and effect that he was not a partner of Arthur Bakofen, also known as Artie Baker, which statement the said Charles Engles, also known as 'Junie' Engles, then and there well knew was false * * *.'

We then consult the language of the statute:

'Any person who willfully swears falsely in any judicial proceeding or before any person authorized by any law of this state to administer an oath and acting within his authority, is guilty of false swearing and punishable as for a misdemeanor.'

Broadly stated, the insistence of counsel for the defendant is that the allegation in the count here impugned, when segregated from the other counts, noticeably fails to inform the defendant of the nature and cause of the accusation as constitutionally required and is legally deficient by reason of its vagueness and uncertainty. Motions were made at the trial on behalf of the defendant Inter alia to dismiss this count of the indictment, and such were denied.

It is not inappropriate preliminarily to comment that during recent decades our courts, executives and legislatures have been watching with apprehensiveness, perhaps anxiety, the rising tide of crime. With a firm adherence to our traditionally basic and fundamental principles, our procedural methodology necessarily continues in the process of rational and more pragmatical readaptation. Especially is this manifest in relation to the elimination of technical and artistic objections to the literal composition of indictments.

Gradually our courts have recognized that the nicety of language, the former precautious tautology and prolixity which had characterized indictments in the environment existing in the days of the early common law could with substituted safeguards be disregarded in the social experiences of the modern day without any infringement of the right of the accused adequately to be informed of 'the nature and cause of the accusation.' Vide, State v. Lefante, 12 N.J. 505, 97 A.2d 472 (1953).

Assuredly, it is still absolutely imperative that an indictment allege every essential element of the crime sought to be charged. State v. Schmid, 57 N.J.L. 625, 31 A. 280 (Sup.Ct.1895); State v. Solomon, 97 N.J.L. 252, 117 A. 260 (E. & A. 1922); State v. Bleichner, 11 N.J.Super. 542, 78 A.2d 577 (App.Div.1951); State v. Lombardo, 20 N.J.Super. 317, 90 A.2d 39 (App.Div.1952); State v. Algor, 26 N.J.Super. 527, 98 A.2d 340 (App.Div.1953); State v. Quatro, 31 N.J.Super. 51, 105 A.2d 913 (App.Div.1954). Positive also it is that the omission of the allegation of an essential element of the crime cannot be supplied by inference or implication. State v. DeVita, 6 N.J.Super. 344, 71 A.2d 390 (App.Div.1950); State v. Lustig, 13 N.J.Super. 149, 80 A.2d 309 (App.Div.1951).

In the present case the point of criticism centers upon the use of the unelucidated word 'partner' in the count here implicated. The count itself explains: 'a partner of Arthur Bakofen.' True, it does not expressly specify the particular activity in which the alliance existed as do the third and fourth counts of the indictment, to wit, 'in the bookmaking business.'

But the legislative and judicial attitude toward the concise composition of indictments has become more liberal and the discretionary disinclination to quash them for vagueness and uncertainty has been manifest unless their palpable deficiency is obviously prejudicial to the defendant in the preparation and presentation of his defense. Proctor v. State, 55 N.J.L. 472, 26 A. 804 (Sup.Ct.1893); State v. Sweeten, 83 N.J.L. 364, 85 A. 309 (Sup.Ct.1912); State v. Davidson, 116 N.J.L. 325, 184 A. 330 (Sup.Ct. 1936); State v. Ellenstein, 121 N.J.L. 304, 327, 2 A.2d 454 (Sup.Ct.1938); State v. Micone, 134 N.J.L. 177, 46 A.2d 663 (Sup.Ct.1946); State v. Russo, 6 N.J.Super. 250, 254, 71 A.2d 142 (App.Div.1950), certification denied, 4 N.J. 456, 73 A.2d 212 (1950); State v. Winne, 12 N.J. 152, 96 A.2d 63, 181 (1953); State v. Witte, 13 N.J. 598, 100 A.2d 754 (1953). An indictment is not regarded as insufficient for the lack of the allegation of any matter not necessary to be proved. Vide, State v. Zimmer, 121 N.J.L. 265, 2 A.2d 49 (Sup.Ct.1938); State v. Borelli, 27 N.J.Super. 223, 98 A.2d 713 (County Ct., 1953).

It must be realized that supplementary information, reasonably relevant and explanatory of the accusation, may now be obtained by a request for a bill of particulars. R.R. 3:4--6. Noticeably the defendant in the present case did not invoke that privilege. Was he in doubt concerning the import of the accusation? Experience has disclosed that very few, if any, of those accused of crime now go to trial in ignorance of the specific accusation against them.

It seems to us that in its practical aspect the contextual association of the four counts of the indictment fully apprised the defendant that he was being accused of falsifying his denial of a participation with Arthur Bakofen in the illicit practice of bookmaking.

However, we shall confine our consideration to the sufficiency of the allegations apparent on the face of the first count. Initially it must be comprehended that the statutory offense of false swearing does not possess the several technical elements of the crime of perjury. State v. Kowalczyk, 3 N.J. 51, 68 A.2d 835 (1949); State v. Eisenstein, 16 N.J.Super. 8, 13, 83 A.2d 777 (App.Div.1951), affirmed 9 N.J. 347, 88 A.2d 366 (1952). Vide, also, State v. Ellenstein, 121 N.J.L. 304, 324, 2 A.2d 454 (Sup.Ct.1938). The indictment for false swearing under observation in Joseph L. Sigretto & Sons, Inc. v. State, 127 N.J.L. 578, 24 A.2d 199 (Sup.Ct.1942), was evidently drawn in the language of the statute and its validity sustained.

Here the word 'partner' was embodied in the question propounded to the defendant at the session of the grand jury. We quote:

'Q. Junie, the last time you were here you said you didn't want to testify because there some outstanding charges against you? (sic) A. That's right.

'Q. You now have entered a plea of guilty or non vult to all those charges? A. That's right.

'Q. Since you have been in and entered that plea I want to ask you, you were a partner of Artie Baker in the arranging of telephone business? A. No, I wasn't.

'Q. You weren't? A. No.

'Q. You weren't his partner At all? A. No.

'Q. You weren't a partner of Artie Baker? A. No.

'Q. In any way? A. No way except what I said about arranging those phones for him.

'Q. You weren't a partner of his in this operation? A. No.'

Noticeably and indeed significantly the count of the indictment reproduces in the same language the question propounded to the defendant which it is alleged he wilfully answered falsely.

Hypothetically it would seem that had the defendant been asked if he was a 'tenant' of Arthur Bakofen and the subsequent indictment charging him with wilfully answering the question falsely omitted a designation of the premises, the same criticisms could be asserted. In either instance the core of the question concerns the existence Vel non of the stated relationship. In reviewing the validity of indictments, essentialties are distinguishable from details.

The defendant had been previously indicted and convicted as a co-conspirator of Arthur Bakofen in the making of book upon the racing of horses. Can it be rationally supposed that he was ignorant of the...