State v. Scott, 41.

• Decision Date: 01 March 1934
• Docket Number: No. 41.,41.
• Citation: 171 A. 311
• Parties: STATE v. SCOTT.
• Court: New Jersey Supreme Court

171 A. 311

STATE

v. SCOTT.

No. 41.

Supreme Court of New Jersey.

March 1, 1934.

Error to Court of Quarter Sessions, Middlesex County.

Thomas Scott was convicted of subornation of perjury, and he brings error. Affirmed.

Argued October term 1933, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Abraham J. Isserman, of Newark (Sol D. Kapelsohn, of Newark, of counsel), for plaintiff in error.

Douglas M. Hicks and Joseph H. Edgar, both of New Brunswick, for defendant in error.

PER CURIAM.

The plaintiff in error, Thomas Scott, was convicted in the Middlesex Quarter Sessions Court of the crime of subornation of perjury, the indictment containing two counts. The first count charged that the defendant, Scott, did suborn one Edward Cichorek to commit perjury at the trial of several persons for the crime of riot. The said Cichorek appeared as a witness for the state. He himself was under indictment for rioting, but was not being tried at this time since he had obtained a severance.

The second count charged Scott with inducing one Stephen Odor to commit perjury at the trial of an indictment at which Odor, like Cichorek, appeared as a witness for the state. The indictment recited that Odor was also under indictment for rioting but had secured a severance. This recital is of some importance as will presently appear.

Three points are urged for reversal under the assignments of error. The first is that the court erred in refusing to direct a verdict of acquittal in the case of the plaintiff in error in that neither count in the indictment charged a crime because in neither count is it alleged that the perjured testimony was material to the issue nor, as it is argued, does the materiality of the testimony appear by necessary implication. The indictment is further attacked as vague and uncertain.

We see no merit to this first point.

The case comes up on a strict bill of exceptions. As to the merit of the argument, it is elementary that false swearing, in order to constitute perjury, must be to a fact material to the issue. This being true it follows that to constitute the crime of subornation of perjury the suborner must have induced false swearing to facts that were themselves material to the issue.

Now it is set forth in the indictment that Cichorek, in the evidence which he gave as a state's witness, willfully, corruptly, and falsely swore, "I saw a bunch of fellows throw bricks but I don't know who they are," the charge being that this testimony was false and that the defendant below, Scott, procured, suborned, and persuaded Cichorek to give this false testimony. Now while the indictment does not state that this testimony was material to the issue, yet on the trial of an indictment for the crime of riot the materiality of the testimony quoted above, which was set forth in the indictment, is obvious.

The same attack is made on the second count of the indictment that it, too, did not allege the materiality of the testimony charged in the indictment to be perjured and induced by the plaintiff in error. Necessarily we are of the same mind with regard to the challenge to this second count since it is identical with the attack against the first count. In neither attack do we find any merit.

The second point made by the plaintiff in error is that the...