State v. Jenkins
| Citation | 136 N.J.L. 112,54 A.2d 804 |
| Decision Date | 16 September 1947 |
| Docket Number | No. 214.,214. |
| Parties | STATE v. JENKINS et al. |
| Court | United States State Supreme Court (New Jersey) |
Harry Jenkins and Edward J. Mescall were indicted for misconduct in office as police officials in having violated their public duties with respect to horse-race gambling and they bring certiorari and moved to quash the indictment.
Indictment quashed.
May term, 1947, before CASE, C. J., and BURLING, J.
Horace K. Roberson, Prosecutor of the Pleas of Hudson County, of Bayonne, and William P. Gannon, Asst. Pros., of Jersey City, for the State.
Thomas H. Brown, of Jersey City, for Harry Jenkins and Edward J. Mescall, defendants-prosecutors.
Harry Jenkins and Edward J. Mescall were the chief of police and deputy chief of police, respectively, of Union City. They were indicted for misconduct in office in having violated their public duties with respect to horse-race gambling. The brief presents the same points and, except in a few instances, in precisely the same words as does the defendsnts' brief in State v. McFeeley, N.J.Sup., 54 A.2d 797. We find no legal element to distinguish this case from the McFeeley case other than that in the latter indictment there were specific and identifiable charges which have no comparable incidents in the indictment now before us. We shall, therefore, address ourselves only to that distinguishing feature.
The question thus presented is whether an indictment meets the requirements of certainty when, without particularizing or identifying a single instance or place of misconduct, it charges a public official with being under the public duty of using and exercising and causing to be used and exercised all proper, reasonable and effective lawful means within his power, for preserving the public peace and insuring good order and suppressing disorderly houses, gaming and betting houses, bookmaking and betting upon the event of horse races and of seizing and capturing furniture and implements for playing those unlawful games and, having charged such duty in those general terms, proceeds to accuse him in like general terms of continuously, unlawfully and willfully neglecting to perform the same.
Misconduct of that nature necessarily consists of a particular incident or of a series of particular incidents. It is not just an attitude. It is action; or it is nonaction with respect to specific incidents. There is not a failure to raid a pool room unless a particular poor room exists, not a failure to lay complaints unless there are particular persons against whom complaints should be laid, and not a failure to seize gambling equipment unless there are particular items of equipment in existence intended for or used for the unlawful purpose. There can be no conviction on such a charge unless the particular incident or a multiplicity of such incidents is proved. A defendant is unable to plead or to prepare a defense against such proofs unless he knows in advance the particular offense or offenses counted upon; not merely the general definition of the crime, either in the words of the statute or according to the common law, but such details of the act or omission as will enable him to know precisely what accusation is laid against him and to prepare his case with foreknowledge of what he will be called upon to meet.
For illustration, it is murder under the...
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...Augustine, 191 A. 805, 15 N.J.Misc. 401 (Sup.Ct.1937); State v. Gibbs, 134 N.J.L. 366, 48 A.2d 300 (Sup.Ct.1946); State v. Jenkins, 136 N.J.L. 112, 54 A.2d 804 (Sup.Ct.1947), error dismissed 137 N.J.L. 209, 59 A.2d 372 (E. & A.1948); State v. McGovern, 136 N.J.L. 115, 54 A.2d 812 (Sup.Ct.19......
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...which failed to meet the enunciated tests of specificity are to be found in the cases cited, and also in State v. Jenkins, 136 N.J.L. 112, 54 A.2d 804 (Sup.Ct.1947); State v. Spear, 63 N.J.L. 179, 42 A. 840 (Sup.Ct.1899); State v. Schmid, 57 N.J.L. 625, 31 A. 280 (Sup.Ct.1895), and State v.......
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