State v. Hanly
| Decision Date | 18 January 1955 |
| Docket Number | No. A--35,A--35 |
| Citation | 111 A.2d 111,33 N.J.Super. 549 |
| Parties | STATE of New Jersey, Plaintiff, v. Paul HANLY, Defendant. (Criminal) |
| Court | New Jersey Superior Court |
Frederick T. Law, Pros. of Hudson County, Kearny, for the State. (Julius D. Canter, Asst. County Pros., Jersey City, of counsel).
John B. Graf, Jersey City, for defendant (Harold Krieger, Elizabeth, of counsel).
DREWEN, J.C.C. (temporarily assigned).
The Hudson County grand jury returned against this defendant an indictment purporting to charge him with the crime of false swearing under the provisions of N.J.S. 2A:131--4, N.J.S.A. Defendant moves to dismiss on the grounds, among others, that (a) the indictment fails to set forth a criminal offense; and (b) that it is contrary to law and violates the defendant's constitutional rights. The statute aforementioned provides:
'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.'
The indictment is in two counts. That part of the first count which is pertinent to our problem charges that the defendant
'then and there did wilfully swear falsely, in substance and effect that he, the said Paul Hanly had not entered into any arrangement with one Richard J. McGrath on behalf of John W. McGrath Corporation, a corporation, whereby he, the said Paul Hanly, would receive 50% Of any profits which the said John W. McGrath Corporation might earn and obtain on operations conducted by the said John W. McGrath Corporation in the State of New Jersey, he, the said Paul Hanly, having been then and there asked, while under oath as aforesaid, concerning the same as follows:
did wilfully swear falsely:
;
and upon being further asked concerning the same:
and upon being further asked concerning the same:
"
did wilfully swear falsely:
:
And so the Grand Jurors as aforesaid, upon their oaths aforesaid, do present that on the date, place and in the jurisdiction set forth herein, and in the manner and form aforesaid, the said Paul Hanly did wilfully swear falsely, contrary to the provisions of N.J.S. 2A:131--4 (N.J.S.A.), against the peace of this State, the government and dignity of the same.'
It becomes manifest at once, I think, that the first count fails to charge wherein the quoted testimony was false. True, the allegation is made that he 'then and there did wilfully swear falsely', but where the falsity lay is not shown. It is not possible to know the falsehood without knowing the truth, and the truth is not averred. The subject testimony embraces not one proposition of fact but several. One of these is embodied in the word 'receive'; another in the amount of profit referred to; another in the limitation of the source of profit, both as to the corporate and the territorial limits of its origin. As a consequence, it must be said for the answer 'No, sir' given to this multiple inquiry that it is not a denial so much as a negative pregnant, that is 'a negation which may or does imply an affirmative.' Webster's New Int.Dict. (2nd ed. 1948). For all that appears, apart only from the ineffectual allegation of falsity made by way of general conclusion, the answer was truthful. The want of verity in anything that the question contains, be it express or clearly implied, would justify the negative answer that was given to the question as a whole. Falsehood in the answer may certainly not be presumed. The only presumption allowed is that of defendant's innocence.
As to the second question in the testimony embodied in the first count, the question and answer taken together are so ambiguous and the answer itself so unresponsive that no charge of falsity is or can be predicated upon it, in the absence of adequate matter of inducement. What the question asks is whether 'any percentage' was agreed upon. The answer is 'That was the only statement, the only agreement that was ever made.' How or wherein this answer can be said to have been false is not alleged. And the third question and answer given in the quoted testimony deals solely with a 'definite statement as to the percentage.' Whether the answer 'No, sir' is to be taken as directed to the definiteness of the percentage, or to the 'statement' referred to, or, to the 'percentage,' or to all of these together, is not shown. An additional vice in the predication of false swearing upon the latter question and answer is in the double negative they present. Asked if he had said there was 'no definite statement', the witness answers: 'No, Sir,' thus contradicting any possible theory of false swearing respecting such answer, clearly so in the absence of adequate matter of inducement.
The general charge that defendant did 'swear falsely' is not only ambiguous but is rendered innocuous as welll by virtue of its being a mere conclusion. In a situation of this kind particulars can serve no proper office since, in order to be informative at all, they would have to supply matter of substance essential to the projected accusation and concerning which the indictment is silent. Particulars are no substitute for an indictment, nor can they be employed to supplement the charge in respect to which it is substantively deficient (cases infra).
Coming now to the second count, so much of it as pertains to our problem charges that defendant
'did wilfully swear falsely, in substance and effect, that a certain check for the payment of money drawn on the account of John W. McGrath Corporation in The Public National Bank and Trust Company of New York, to the order of him, the said Paul Hanly, in the sum of $1,000.00, and bearing date of October 11, 1949, had been received by him, the said Paul Hanly, from one, Richard J. McGrath, as a contribution to an alleged Christmas basket fund, he, the said Paul Hanly, having been then and there asked, while under oath, as aforesaid, concerning the same as follows:
did testify:
"A. $1,000.00.';
and upon being further asked concerning the same:
did wilfully swear falsely:
And so the Grand Jurors as aforesaid, upon their oaths aforesaid, do further Present that on the said 12th day of March, 1953, at the place and in the jurisdiction set forth herein, and in the manner and form aforesaid, the said Paul Hanly did wilfully swear falsely, contrary to the provisions of N.J.S. 2A:131--4 (N.J.S.A.), against the peace of this State, the government and dignity of the same.'
The first question and answer that the second count recites have reference to the amount of the check, and on the face of it the answer given is manifestly true. As to the second question and answer, if the purpose of the check, which is what the question seeks to elicit, was not as the answer indicates, we are left only to guess at the truth that would render the answer false. In all other respects what has been said about the deficiency of the first count has corresponding application here.
The invalidity of the charge as made by this indictment becomes all the more apparent when we consider the proof that would be required to sustain it. Surely it would have to include the essential truth surrounding the respective subjects of the matter sworn to, and since averment of that truth forms no part of the indictment, the omission becomes thus the more obviously fatal.
Another aspect of defectiveness in the charge as made is its failure to identify, that is to particularize, the crime it is designed to charge. Identification of the particular crime in view is a vital feature of a valid indictment and goes directly to defendant's protection against double jeopardy, as the cases (infra) make clear. If this indictment were permitted to stand, a trial upon one feature of alleged truth within its scope might well be antecedent to a second prosecution for another and different feature of alleged truth within the context of the charge, vague and indefinite as it is.
The decision that this indictment must be dismissed is not without full awareness of the responsibility that rests upon the court's discretion in the matter of dismissing indictments, nor of the cautionary precepts under this head expressed in the more recent cases. In State v. Weleck, 10 N.J. 355, at page 364, 91 A.2d 751, at page 755, (1952), the court says:
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