State v. Kowalczyk.
| Decision Date | 24 October 1949 |
| Docket Number | No. A-8.,A-8. |
| Citation | 68 A.2d 835 |
| Parties | STATE v. KOWALCZYK. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
John Kowalczyk was convicted in the Camden County Court, Bartholomew A. Sheehan, J., of false swearing, and he appealed.
The Superior Court, Appellate Division, John O. Bigelow, J., 4 N.J.Super. 47, 66 A.2d 175, reversed the judgment, and the Supreme Court granted the State's application that the judgment be certified.
The Supreme Court, Case, J., reversed the judgment of the Appellate Division, and held that the indictment was not fatally defective and that the proofs sustained the verdict.
Mark Townsend, Jr., Deputy Attorney General, argued the cause for the petitioner (Theodore Parsons, Attorney General, attorney).
Joseph Tomaselli, Camden, argued the cause for the respondent (Malandra & Tomaselli, Camden, attorneys).
The opinion of the court was delivered by
The defendant-respondent Kowalczyk is known also in the proceedings as Kowal and will be so called herein. He was tried and convicted on an indictment in Camden County. On appeal the Appellate Division reversed. The certification is on the petition of the state.
The indictment contained two counts, both of which charged willful false swearing before a Camden County grand jury; the first preliminarily charged Kowal with willfully and falsely swearing that he did not know one Benjamin Anyzcek and could not identify a photograph of him and with willfully and falsely swearing that he did know him and could identify a photograph of him, and the count concluded with the charge that the statements so made under oath were contrary and that one or the other of them, to Kowal's knowledge, was false and ‘contrary to the form of the statute * * *’; the second followed the same format and charged Kowal with willful false swearing in that he first testified that he did not, and later testified that he did, know the business in which Anyzcek was engaged.
Petitioner argues that the Appellate Division erred in holding that the defendant could and did purge himself of the offense of false swearing by correcting his testimony at the same hearing before the grand jury and that the court further erred in holding that the burden was upon the state to prove which statement was false and in holding that the state had failed to sustain the burden.
R.S. 2:157-4, 5, N.J.S.A., provide:
‘5. Where a person has made contrary statements on his oath or oaths administered within the provisions of this article, it shall not be necessary to allege in an indictment or allegation which statement is false but it shall be sufficient to set forth the contradictory statements and allege in the alternative that one or the other is false.
‘Proof that both such statements were made under oath duly administered shall be prima facie evidence that one or the other is false; and if the jury are satisfied from all the evidence beyond a reasonable doubt that one or the other is false and that such false statement was willful, whether the same was made in any judicial proceeding or before a person authorized to administer an oath and acting within his authority, it shall be sufficient for a conviction.’
The indictment charged offenses against that statute. The court below so held, and we concur. It is also evidence that the offenses come within the purview of sec. 5, supra.
We further agree that the irregularity of the indictment in charging that each of the opposite statements was false does not invalidate the judgment of guilt. The trial went on the accusation that the accused had made specified contradictory statements on oath, contrary to the provisions of the statute, and the statute was read by the judge to the jury by way of instruction. The record discloses no confusion or uncertainty on the trial of the indictment with respect to the particulars of the charge. The defendant, as a witness at his trial, stated that in making the original denials of knowledge, acquaintanceship and recognition he had been confused; but there was no confusion at the trial about what issue was being tried or about where the truth lay. The conceded fact was that he did have knowledge. The indictment, as we have said, sets out a crime-the crime of false swearing under the statute. It charges two offenses against that statute; it was so intended, so received and so tried out. So far as the record discloses the indictment was not made the subject of attack before trial. Among the grounds stated in support of a motion for judgment of acquittal at the close of the state's case, renewed at the end of the entire case, it was said that the indictment was framed as a double negative, but we discover no prejudice to the defendant in maintaining his defense on the merits. Rule 1:2-19(b). Furthermore, inasmuch as a crime was charged, State v. Quinn, 108 N.J.L. 467, 158 A. 834 (Sup.Ct.1932), an objection to the indictment for defect of form or substance apparent on the face thereof should have been taken before the jury was sworn. State v. Callary, 108 N.J.L. 462, 159 A. 161 (Sup.Ct.1932), affirmed 110 N.J.L. 24, 164 A. 20 (E. & A.1932).
The petitioner contends that the court below erred in holding that the burden was upon the state to prove which statement was false, and the respondent, accepting the assumption that the court so held, argues the point contra on its merits. It is not clear to us that the opinion did more than to say that such was a former requirement, now removed by the statute; but we think that the meritorious question should be decided. The statute expressly relieved the state from the necessity of alleging, in the indictment, which of the contrary statements was false and provided that proof of the making of both such statements should be prima facie evidence that one or the other was false. Whichever was false and whichever was the truth, there was culpability if the jury were satisfied from all of the evidence beyond a reasonable doubt that one of them was false and that the false statement was willful. Here, by the admission of the accused, the first statement was false and the second was the truth. The burden of proving guilt was, of course, upon the state, and a part of that burden was proving that the defendant had sworn falsely, but by the terms of the statute this part of the burden was carried if the proofs were sufficient to satisfy the jury beyond a reasonable doubt that one statement or the other was false. The contrary element in the statements was prima facie, but not conclusive, evidence of the falseness. It is conceivable that the defendant might not have made the statements, or that he might not have made them in such an unequivocally contrary sense that the utterance of one required the immediate negation of the other. The duty rested upon the state to establish the affirmative of those contingencies beyond a reasonable doubt. But it was not incumbent upon the state to prove which of the two statements was the false one. The former Supreme Court twice gave comparable interpretation to the statute. State v. Ellenstein, 121 N.J.L. 304, 322, 2 A.2d 454 (Sup.Ct.1938); State v. Harris, 132 N.J.L. 54, 38 A.2d 686 (Sup.Ct.1944). The trial judge charged the jury consistently with those legal principles and the correctness of the charge is not questioned. The verdict was of guilt. The proofs, with their prima facie significance and the admissions by the accused, amply sustain the jury verdict.
The Appellate Division erred in stating the rule upon the opportunity of a witness to purge himself of criminal responsibility for false swearing...
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