State v. Harris.

• Decision Date: 03 August 1944
• Docket Number: No. 13.,13.
• Citation: 132 N.J.L. 54,38 A.2d 686
• Parties: STATE v. HARRIS.
• Court: New Jersey Supreme Court

132 N.J.L. 54

38 A.2d 686

STATE

v.HARRIS.

No. 13.

Supreme Court of New Jersey.

Aug. 3, 1944.

Allen Harris was convicted of willfully swearing falsely, and he brings error.

Affirmed.

May term, 1944, before BROGAN, C. J., and DONGES and PERSKIE, JJ.

Oliver Randolph, of Newark (Robert Queen, of Trenton, of counsel), for plaintiff-in-error.

William A. Wachenfeld, prosecutor of pleas, Donald C. Fox, Asst. Prosecutor, and C. William Caruso, Sp. Asst. Prosecutor, all of Newark, for defendant-in-error.

PERSKIE, Justice.

This is a criminal case. Plaintiff-in-error, defendant below, was convicted of willfully swearing falsely and was sentenced to be imprisoned in the penitentiary of Essex County for a term of eighteen months at hard labor. Defendant appeals. The judgment under review is before us on a writ of error (R.S. 2:195-1, N.J.S.A.), and on the entire record had upon the trial of the cause. R.S. 2:195-16, N.J.S.A.

The indictment, trial and conviction were based upon the provisions of R.S. 2:157-4 to R.S. 2:157-8, inclusive, N.J.S.A. It would serve no helpful purpose to detail the allegations of the indictment. It should suffice to observe that the indictment alleges, in substance, that defendant did ‘willfully swear falsely’ while under oath (R.S. 2:157-4, N.J.S.A.) in one or the other of the ‘contrary statements' (R.S. 2:157-5, N.J.S.A.) which he made in two different judicial proceedings, both before Judge Richard Hartshorne, while testifying in a criminal case in the Essex County Court of Quarter Sessions, one statement having been made on June 1, 1943, and the other on June 14, 1943. Although it is ‘not necessary’ to prove their ‘materiality’ (R.S. 2:157-6, N.J.S.A.), the contradictory statements relate to the question as to whether or not defendant had been in fact ‘graduated from the University of Chicago Law School’ in ‘1927.’ The indictment alleges (by setting down the questions posed to defendant and his answers) that on the first occasion (June 1, 1943) the defendant swore that he had been ‘graduated from the University of Chicago Law School’ in ‘1927’, and that on the second occasion (June 14, 1943) he swore that he was not a ‘graduate of any law school’ although he qualified that answer several times by saying that ‘if’ he swore as he did on the first occasion he was ‘mistaken,’ he made a ‘mistake.’

Two days before the trial of the instant case, counsel for defendant, with leave of the court, withdrew defendant's plea of not guilty and moved to quash the indictment on the ground ‘that the facts charged in the indictment do not constitute the crime of false swearing as defined in Title 2:157-4 and 157-8 in that there are no contradictory statements set forth in the indictment within the meaning of the statute.’

At the trial no proof was offered by on for the defendant. His counsel conceded that the ‘statements' (in form of questions and answers) set down in the indictment were ‘an accurate transcript’ of the stenographer's report as to what defendant had sworn to in both judicial proceedings. The defense, as indicated by counsel's opening, was that the statements made by the defendant ‘were not willfully false.’

The stenographer who took and transcribed the testimony of defendant at both proceedings, read into the record of this case, with consent of counsel for the respective parties, the questions and answers incorporated in the indictment. That defendant testified under oath and that the proceedings were judicial were also conceded for defendant. On the record so made the trial judge submitted the case to the jury.

Defendant sets down seven assignments of error and the same number of specifications of causes for reversal. Both are identical in content.

The first is that the court erred in refusing to quash the indictment, the next five charge error in remarks by the trial judge in his charge to the jury, and the last charges error in refusing a request to charge.

1. Refusal to quash the indictment. This point is without merit substantively or adjectively. The denial of a motion to quash an indictment, whether in the court of first instance or in this court, is a matter of judicial discretion. State v. Riggs, 92 N.J.L. 575, 576, 106 A. 467; State v. Davidson, 116 N.J.L. 325, 328, 184 A. 330. The settled rule of law is that this discretion will not be exercised unless upon the clearest and plainest ground, but defendant will be left to a demurrer, motion in arrest of judgment, or a writ of error. Proctor v. State, 55 N.J.L. 472, 26 A. 804; State v. Davidson, supra; State v. Riggs, supra, 92 N.J.L. at page 576, 106 A. 467; State v. Bradway, 118 N.J.L. 17, 20, 190 A. 778. Cf. State v. Schlueter, 127 N.J.L. 496, 498, 23 A.2d 249. For review on certiorari see State v. Then, 114 N.J.L. 413, 417 et seq., 177 A. 87. And since the quashing of an indictment is discretionary, the propriety vel non of the exercise of that discretion will not be reviewed either on strict writ of error (R.S. 2:195-1, N.J.S.A.), or under R.S. 2:195-16, N.J.S.A., because not occurring at the trial. State v. Simon, 113 N.J.L. 521, 526, 174 A. 867, affirmed 115 N.J.L. 207, 178 A. 728; State v. Garrison, 130 N.J.L. 350, 351, 33 A.2d 113; State v. Lisena, 131 N.J.L. 48, 49, 34 A.2d 737. Cf State v. Schlueter, supra.

But here the indictment is valid. It charges the statutory crime of willfully swearing falsely. It is in the language of the statute (State v. Tilton, 104 N.J.L. 268, 140 A. 21; Levine v. State, 110 N.J.L. 467, 471, 166 A. 300; Joseph L. Sigretto & Sons, Inc., v. State, 127 N.J.L. 578, 581, 24 A.2d 199), it explicitly ‘apprised’ defendant of the ‘offense charged’ (Joseph L. Sigretto & Sons, Inc., v. State, supra), it ‘presents with reasonable certainty’ all of the facts necessary to render the offense judicially apparent (State v. Ellenstein, 121 N.J.L. 304, 315, 2 A.2d 454, 461), and it is subject to no infirmity which would prevent a proper ‘judgment’ to be entered on it. Cf. State v. Ellenstein, supra, 121 N.J.L. at page 325, 2 A.2d 454.

2. As to remarks by the court in his charge to the jury. It is the settled law of this state that it is always the right and often the duty of a trial judge to comment on the evidence, and give the jury his impression of its weight and value, and such comment is not assignable for error so long as the ultimate decision on disputed facts is plainly left to the jury. Cf. State v. Overton, 85 N.J.L. 287, 294, 88 A. 689; State v. Hauptmann, 115 N.J.L. 412, 429 et seq., 180 A. 809; State v. Jefferson, 129 N.J.L. 308,...