State v. Lambertson

• Decision Date: 21 April 1970
• Citation: 264 A.2d 729,110 N.J.Super. 137
• Parties: STATE of New Jersey, Respondent, v. Howard LAMBERTSON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 137

110 N.J.Super. 137

264 A.2d 729

STATE of New Jersey, Respondent, v. Howard LAMBERTSON, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 16, 1970.

Decided April 21, 1970.

Burton T. Gans, Toms River, for appellant (Kushinsky & Gans, Toms River, attorneys).

John F. Russo, First Asst. Prosecutor, for respondent (Robert H. Doherty, Ocean County Prosecutor, attorney).

Before Judges CONFORD, COLLESTER and KOLOVSKY.

The opinion of the court was delivered by

KOLOVSKY, J.A.D.

Defendant, then one of the three members of the board of chosen freeholders which governs the County of Ocean (see N.J.S.A. 40:20--20), appeals from a judgment of conviction entered on a jury verdict finding him guilty of violating N.J.S.A. 2A:135--8(c).

This case stems from the furnishing and installation by Abco Floor and Wall Covering Inc. (Abco) of title in the ladies room of the Ocean County court house for which it received $894 from the county. The State charged that defendant was financially interested in the transaction--indeed, that he was a 10% Stockholder and a director of Abco--and therefore was guilty of the criminal offense described in paragraph (c) of N.J.S.A. 2A:135--8, which reads as follows:

Any member of a board of chosen freeholders or of the governing body of a municipality, or of a board of education in any school district, who:

a. Is directly or indirectly concerned in an agreement or contract for the construction of any bridge or building, or any improvement to be constructed or made for the public use or at the public expense; or

b. Is a party, either as principal or surety, to an agreement or contract between the county, municipality or school district, as the case may be, and any other party; or

c. Is directly or indirectly interested in furnishing any goods, chattels, supplies or property to or for the county, municipality or school district, the agreement or contract for which is made or the expense or consideration of which is paid by the board or governing body of which such member is a part--

Is guilty of a misdemeanor.

Defendant moved for an acquittal at the end of the State's case. When it was denied, he rested without offering any evidence. His first and principal contention on appeal is that it was error to deny the motion for acquittal; that the jury could not reasonably find from the State's evidence that he was guilty beyond a reasonable doubt of the crime charged. We disagree.

The public policy which N.J.S.A. 2A:135--8 (formerly Crimes Act, § 32; Comp.Stat. p. 1755) seeks to effectuate was described by Vice-Chancellor Backes in Ames v. Board of Education of Montclair, 97 N.J.Eq. 60, 127 A. 95 (Ch.1925):

'It is an inexorable rule of the common law, and it finds expression in our statute, that public servants shall not be interested, directly or indirectly, in any contract made with public agencies of which they are members. Public service demands an exclusive fidelity. The law tolerates no mingling of self-interest. (at 64--65, 127 A. at 97)

However, to establish criminal liability under the statute requires more than a mere showing that the letter of the unrestricted legislative language has been violated. As construed in State v. Kuehnle, 85 N.J.L. 220, 225--226, 88 A. 1085 (E. & A. 1913), the statute also requires the showing of a criminal intent.

The basic problem with which the court was concerned in Kuehnle was whether in enacting the statute the Legislature intended to make the prohibited acts 'criminal without regard to the criminal intent,' as a prior decision, Halsted v. State, 41 N.J.L. 552 (E. & A. 1879), had held was the legislative intendment in the case of a statutory crime relating to the expenditure of public funds in excess of appropriations.

In answering the posed question in the negative and distinguishing Halsted, the court in Kuehnle said:

The legislature may if it will make an act criminal without regard to the criminal intent; the question is, has it done so. The construction of the statute in (Halsted) turned on the fact that the duty to be performed was a simple one, not subject to very great difficulties in its performance. In the present case the statute, if construed literally and as not requiring a corrupt motive, would lead to results that surely could not have been intended. We think, therefore, that the material averment is the averment that the defendant was corruptly interested and concerned, * * *. (85 N.J.L., at 225, 88 A. at 1088)

Although the issue thus resolved in Kuehnle was whether the Legislature had made the proscribed conduct criminal without regard to the criminal intent, it cannot be gainsaid that the prolix opinion in that case and its interchangeable use of the several words 'criminal intent,' 'corrupt intent,' 'corrupt motive,' 'corrupt interest' and 'corrupt concern' leads to some confusion as to the exact nature of the State's obligation in a prosecution for a violation of the statute.

Defendant argues that Kuehnle holds that the State's obligation is to show a specific 'corrupt intent'--something in addition to or beyond what generally would suffice for a finding of criminal intent. The State, on the other hand, contends that it need not show anything beyond what is commonly encompassed within the words 'criminal intent' or Mens rea.

We agree with the State. Kuehnle's use of the words 'corrupt intent' is but another way of referring to criminal intent. Cf. State v. Begyn, 34 N.J. 35, 50, 167 A.2d 161 (1961). Here the statute does not call for a 'specific intent' over and beyond a criminal intent as an element of the crime. To incorporate such a requirement would constitute impermissible judicial legislation. That is not what the court did in Kuehnle. Rather, it recognized the settled rule that the constituents of a criminal offense at common law are an evil intention, Mens rea, and an unlawful act see State v. Labato, 7 N.J. 137, 149, 80 A.2d 617 (1951) and that unless it was satisfied (and it was not) that the Legislature intended to make the conduct proscribed by section 32 of the Crimes Act criminal without regard to criminal intent, the statute would be construed as requiring a showing of such intent in order to convict a defendant of the criminal offense.

No contrary implication is to be drawn from what we said in State v. Williamson, 54 N.J.Super. 170, 148 A.2d 610 (1959), aff'd 31 N.J. 16, 155 A.2d 7 (1959), a case involving the sufficiency of an indictment charging a city manager with misconduct in office. This court, in holding Kuehnle 'not authoritative as to the matter in contention before us,' referred to it as a case where 'statutory construction * * * (led) to a proper determination that corruption was intended as an essential element of the offense in question.' 54 N.J.Super., at 185, 148 A.2d at 618.

The cases use many words--criminal intent, corrupt intent, corruption, bad faith and the like. Their reference however is not to a 'specific intent' where the statute defining the crime does not mandate a specific intent. Nor do they require a showing that defendant was conscious that his acts were unlawful. Rather, the reference is to an awareness by defendant of the existence of all those facts which make his conduct criminal. Morss v. Forbes, 24 N.J. 341, 358--359, 132 A.2d 1 (1957); United States v. Crimmins, 123 F.2d 271, 272 (2 Cir. 1941).

In Morss v. Forbes the court concluded that to establish a violation of the statute, N.J.S.A. 2A:146--1 (since repealed) which made it a misdemeanor for one to 'wilfully and maliciously' tap telephone wires, required a showing of a criminal intent--'the element of general intent must be proved before a contravention of the wiretapping statute can be established.' 24 N.J., at 359, 132 A.2d at 11.

But, as the court then noted--and its comments apply to the statute here involved:

We should not, however, confuse intent with motive. Proof of motive is never essential to a conviction but may be evidential. 22 C.J.S. Supra, (Criminal Law) § 31(a) 1 Wharton, supra, (Criminal Law (12th ed. 1932)) at § 156. * * * The ordained inquiry is whether the act condemned was committed with full knowledge of the facts, in a conscious and purposeful manner, without legal justification or excuse. It must not be the product of inadvertence or negligence or any state of mind other than a free and untrammeled will. This is the definition of criminal intent embodied in the words 'willfully and maliciously,' as used in this statute. The accused must intend to act in the way proscribed by the statute, but it is immaterial that he does not know or believe his conduct violates the law.

Even positive belief that the act is lawful should not exempt the doer from criminal responsibility. Consciousness of unlawfulness is not essential. 1 Wharton, Supra, at § 160. If ignorance were a good defense, the administration of the penal law would again depend upon the well-nigh impossible ascertainment of hazy and amorphous mental conditions and opaque logic. When, with a clear knowledge of all the facts, one deliberately and intentionally does an act in violation of a positive law, cognizant of its existence, he cannot be excused on the basis that his animating desire was essentially praiseworthy. (at 359, 132 A.2d at 11)

The same views were succinctly expressed by Judge Learned Hand in United States v. Crimmins, Supra:

Ordinarily one is not guilty of a crime unless he is aware of the existence of all those facts which make his conduct criminal. That awareness is all that is meant by the mens rea, the 'criminal intent', necessary to guilt, as distinct from the additional specific intent required in certain instances. (123 F.2d, at 272)

That is not to say that the State may not offer additional affirmative evidence to show that defendant acted in bad faith and with an intent to profit at the expense of the governmental unit involved. Such was the purpose of the...