State v. Lombardo

• Decision Date: 07 March 1952
• Citation: 18 N.J.Super. 511,87 A.2d 375
• Parties: STATE v. LOMBARDO. (Criminal), New Jersey
• Court: New Jersey County Court

Page 511

18 N.J.Super. 511

87 A.2d 375

STATE v. LOMBARDO.

Camden County Court, Law Division (Criminal), New Jersey.

March 7, 1952.

Mitchell H. Cohen, Prosecutor of Camden County, Camden, for the state.

Frank G. Schlosser, Hoboken, for defendant.

PALESE, J.C.C.

The defendant, Dominick Lombardo, moves to dismiss 3 indictments returned by the Camden County grand jury. The indictments are Nos. 985, 986 and 991. The defendant first attacks the indictments on the ground that they are not certified as 'true bills' by the foreman of the grand jury.

Rule 2:4--11 provides in part as follows: 'The indictment or accusation shall be a written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney. The indictment shall be endorsed by the foreman.'

It will be noted that the rule does require an endorsement, but there is no requirement in the rule that the indictment shall contain the words 'A True Bill'; nor is there anything in the rule that renders the indictment fatally defective without such certification.

The word 'endorsed' appears on each indictment and thereunder appears the name of 'William P. Partenheimer, Foreman,' and each indictment was signed by the prosecuting attorney.

Manifestly the purpose and reason for the endorsement and the signature of the foreman is to identify the indictment and to demonstrate the fact that it is the act of the grand jury.

It may be pointed out that prior to the new rules of criminal procedure such certification by the foreman was not a necessary prerequisite to the validity of an indictment.

In the case of the State v. Magrath, 44 N.J.L. 227 (Sup.Ct.1882), Justice Beasley reviewed the entire subject concerning the necessary formal requisites of an indictment, and concluded that it is not necessary to the validity of an indictment that it be certified as a 'true bill.' It was not even necessary under the aforementioned case for the foreman to sign the indictment, although Justice Beasley acknowledges that the American authorities were in conflict upon this subject and felt that his determination was best sustained by reason, and as well sustained by authority.

The endorsements as appear on each indictment are sufficient to identify the indictments and there is a sufficient compliance with the provisions of Rule 2:4--11.

It is difficult to perceive any more sufficient endorsement than the method employed by the foreman of the grand jury with respect to the indictments under consideration.

Defendant urges that indictment No. 985, which charges the defendant with false swearing, contrary to provisions of R.S. 2:157--4 and R.S. 2:157--5, N.J.S.A., fails to charge a crime, and further that this indictment is fatally defective because in several of the counts wherein statements of an inconsistent nature are alleged the word 'willful' is not used.

R.S. 2:157--5, N.J.S.A., reads as follows:

'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.'

Counts 1, 2, 3 and 4 of this indictment are framed by setting forth contradictory statements made by the defendant under oath and charge in the alternative that one or the other was false. The offense charged in each count, and the manner of pleading it, are concededly within the provisions of R.S. 1937, 2:157--5, N.J.S.A. The argument is that false swearing alone is not sufficient, in the absence of the element of willfulness. Therefore to charge a crime the indictment must affirmatively charge that the defendant not only swore falsely, but that he did so willfully.

The defendant in each of these counts is charged with the single offense of false swearing, and he is informed of precisely what he is to meet. The counts charge the defendant in the manner as provided for in the statute, that is, by setting forth the contradictory statements and charging that one or the other, without specifying which, is false. But the statute further provides that the jury shall be satisfied beyond a reasonable doubt that one or the other is false, and that such false statement was willful, in order to justify a conviction. The Legislature has set forth what shall constitute evidence of the commission thereof and the test in this regard is whether or not the Legislature, in setting forth what evidence shall constitute proof of the crime, has set up a reasonable standard.

It is sufficient if the indictment makes it judicially apparent that a crime was committed. Haase v. State, 53 N.J.L. 34, 20 A. 751 (Sup.Ct.1890); State v. Ellenstein, 121 N.J.L. 304, 2 A.2d 454 (Sup.Ct.1938).

Defendant argues that the word 'willful' is a prerequisite to the validity of the indictment. It has long been held in our State that an indictment for a statutory crime is sufficient where the offense is charged in language substantially similar with that of the statute, and the mere omission of the exact words named in the statute is not sufficient to vitiate the indictment. State v. Hickman, 8 N.J.L. 299 (Sup.Ct.1826); State v. Caporale, 85 N.J.L. 495, 89 A. 1034 (Sup.Ct.1914); State v. Augustine, 191 A. 805, 15 N.J.Misc. 401 (Sup.Ct.1937).

Under the statute under consideration, where two contradictory statements are made, it is an irresistible conclusion that one of them must be false, and the defendant was so charged. To justify a conviction the jury must be satisfied from all the evidence, beyond a reasonable doubt, that one or the other was false, and that such statement was made willfully. It is true that the essence of the crime, and proof thereof, is willfully testifying to two contradictory statements, one of which must be false. It is essential to the proof of the crime, as charged in the indictment, that he falsely swore to two contradictory statements, and if he did not swear to both, or if the jury is satisfied that one was not willful, then he must be acquitted. If they are contradictory then, by necessity, one is false, but the defendant can successfully defend by saying that they are not contradictory, or that he did not so testify, or that either of the statements was not willfully made. The gravamen in the charge is false swearing. Surely the Legislature may designate what evidence shall constitute proof of the elements of the crime, and under R.S. 2:157--5, N.J.S.A., it is provided that proof of two contradictory statements shall be prima facie evidence that one or the other is false; and then it is provided as to what shall justify a conviction, to wit, that the jury must be satisfied beyond a reasonable doubt that one or the other must be false, and that such false statement was willful.

If it be that the statute designates the legal effect to flow the proof of the contradictory statements, there is a precedent. R.S. 2:134--18, N.J.S.A., the Bad Check Statute, State v. Parsons, 140 A. 13, 6 N.J.Misc. 76 (Sup.Ct.1927), affirmed 105 N.J.L. 253, 142 A. 918 (E. & A.1928), wherein the drawing of a check is made prima facie evidence of intent to defraud. Although the word willful is not used in these counts, I find that the indictment sufficiently alleges the crime under provision of R.S. 2:157--5, N.J.S.A.

Counts 5, 6 and 7 of the same indictment charges defendant did willfully swear falsely, with a recital of the false swearing, in violation of R.S. 2:157--4, N.J.S.A. Surely the language is sufficient to apprise the defendant that he is being charged with willful false swearing. R.S. 2:157--4, N.J.S.A., provides that: 'Any person, his procurers, aiders and abettors, who shall willfully swear falsely in any judicial proceeding, or who shall willfully swear falsely before any person authorized by virtue of any provision of law of this state to administer an oath and acting within his authority, shall be guilty of false swearing.'

The defendant further contends that although the word 'willful' is used in the body of the indictment, it should have been contained at the end of each statement concerning which he is charged with false swearing.

In each of these counts there is a recital of the investigation of the grand jury, that the defendant was duly sworn by the foreman of the grand jury to tell the truth, and then he is charged he did willfully swear false in substance and in fact, that he had never received any moneys from John and Pauline Caruso between the 17th day of May, 1951, and the 1st day of July, 1951, when, in fact, he had so received money from John and Pauline Caruso between the 17th day of May, 1951, and the 1st day of July, 1951. Counsel for defendant contends there is no recital of what is alleged to be the true fact. Attention may be called to count 6 of the indictment wherein it is charged that the defendant did then and there willfully swear falsely in substance and in fact that he did not know that a prisoner, Rocky Catalano, had been permitted to leave the jail, whereas in fact said Rocky Catalano had been permitted to leave the jail to the knowledge of the said Dominick Lombardo.

The gravamen of the charge is that of willful false swearing under oath. The indictment sufficiently identifies the proceedings under which the statement was made and the person before whom it was made; it sufficiently shows that the defendant was...