State v. Sullivan

• Decision Date: 01 April 1957
• Docket Number: No. A--75,A--75
• Citation: 24 N.J. 18,130 A.2d 610,66 A.L.R.2d 761
• Parties: , 66 A.L.R.2d 761 STATE of New Jersey, Plaintiff-Respondent, v. J. Minor SULLIVAN, III, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 18

24 N.J. 18

130 A.2d 610, 66 A.L.R.2d 761

STATE of New Jersey, Plaintiff-Respondent, v. J. Minor SULLIVAN, III, Defendant-Appellant.

No. A--75.

Supreme Court of New Jersey.

Argued Jan. 28, 1957.

Decided April 1, 1957.

Harold H. Fisher, Newark, for appellant (Shanley & Fisher, Newark, attorneys).

Frank H. Lawton, First Asst. Pros., Trenton, for the State (Mario H. Volpe, Mercer County Pros., Trenton).

The opinion of the court was delivered by

WACHENFELD, J.

The legality of a conviction for perjury is challenged on this appeal by Dr. J. Minor Sullivan, III, defendant-appellant, hereinafter referred to as the defendant.

In 1948 William Horner and his reputed wife owned and operated a second-hand furniture store in Trenton. On the morning of January 27 he was brutally beaten to death with a blunt instrument and she was seriously injured by a vicious assault.

It is wholly unnecessary to relate in detail the subsequent factual developments except to say that by reason of diligent police investigation six suspects were soon apprehended and taken into custody.

Dr. Sullivan is a general medical practitioner residing in Trenton. He was asked by the Trenton police to witness the signing of confessions by five of the six men charged with murder. After his arrival at police headquarters defendant generally interrogated each suspect in what has since become known in legal annals as the 'Trenton Six' case. His principal inquiries concerned the treatment they had received while in the custody of the police.

A. Dr. George Corio was also summoned to act as an impartial witness. Both doctors gave a brief but fairly thorough physical examination to each of the accused. None of the murder defendants indicated he had been maltreated in any fashion and the doctors found no evidence of physical abuse.

Thereafter, Sullivan was queried by the police as to his findings and conclusions, and the questions and answers were recorded in a notarized statement signed by him.

In June of 1948 the murder indictment was brought to trial. It was a long, complicated and difficult case lasting 44 days, and during the course of it Sullivan was called upon to testify on two occasions. He first appeared at a preliminary hearing before the trial judge on the admissibility of the confessions, and later he again testified before the jury as the trial proceeded. All five confessions whose signing Sullivan had witnessed were admitted into evidence, and the six murder defendants were convicted by a jury and subsequently sentenced to death.

The judgment so rendered was reversed by this court, State v. Cooper, 2 N.J. 540, 67 A.2d 298 (1949), on several grounds, including the failure of the jury verdict of guilty to designate the degree of murder in accordance with statutory requirements, and we returned the case for a new trial. To guide the lower court at the second trial, we discussed the admissibility of the aforementioned confessions and cautioned that '(i)n the enforcement of the constitutional guaranty of due process, the inquiry is whether there has been observance of 'that fundamental fairness essential to the very concept of justice. * * * " and that 'a confession induced by physical or moral compulsion, whatever its nature, has no evidential efficacy.' Contrary to Sullivan's present contentions, we did not determine that In fact the subject confessions had been obtained without due process.

As a result of this reversal, a second murder trial ensued. Sullivan against testified at the preliminary inquiry as to the admissibility of the confessions and also before the jury itself.

Although Sullivan's testimony grew increasingly unfavorable to the State, the prosecution made no attempt to discard him as a witness until well along in the cross-examination before the jury, when it attempted to plead surprise and thereafter endeavored to neutralize his testimony.

The second trial resulted in the acquittal of four defendants; the remaining two, Collis English and Ralph Cooper, were found guilty of murder in the first degree with a recommendation by the jury of life imprisonment.

We again reversed for numerous trial errors, recited in the opinion in State v. Cooper, 10 N.J. 532, 92 A.2d 786 (1952). The later developments and ultimate disposition of the 'Trenton Six' case are not material and have no bearing upon the issues presented by this appeal.

After the second murder trial, two indictments were returned against the defendant. They are essentially the same except that one charges perjury, the other the crime of false swearing. The State's theory is that after the first trial Sullivan directed himself toward securing freedom for the murder defendants and to this end willfully falsified his testimony at the second trial in attempting to establish that the defendants were incompetent at the time they had executed their respective confessions. It is said the testimony of Dr. Sullivan at the first trial was true but that he perjured himself, in the manner indicated in the indictments, at the second trial.

Each indictment contains eight counts reciting verbatim portions of the defendant's testimony at the second murder trial of Ralph Cooper, Collis English, McKinley Forrest, John MacKenzie, James H. Thorpe and Horace Wilson regarding his examinations and observations of these defendants and his conclusions as to their mental and physical condition and the cause thereof.

The perjury indictment alleges that Sullivan 'then and there did commit willful and corrupt perjury in manner and form aforesaid, contrary to the provisions of R.S 2:157--1, and against the peace of this State and the government and dignity of the same.'

By court order, the indictments were consolidated and tried together. R.R. 3:5--6.

The perjury indictments was attacked by the defendant, who alleged it was predicated upon expressions of professional opinion and belief and failed to contain allegations necessary for charging a crime and was invalid for this and other reasons. The indictment was sustained in 25 N.J.Super. 484, 96 A.2d 680 (App.Div.1953), certification denied 13 N.J. 289, 99 A.2d 450 (1953), certiorari denied 347 U.S. 903, 74 S.Ct. 428, 98 L.Ed. 1063 (1954).

The false swearing indictment was likewise subjected to appellate treatment, 33 N.J.Super. 138, 109 A.2d 430 (App.Div.1954).

To prove the charges made in the indictments, the State introduced transcripts of defendant's testimony at the first and second murder trials. It put upon the stand Dr. Corio and various police officials who were present at the time Sullivan conducted his physical examinations and produced the question and answer statement signed by the defendant in 1948.

The defense was a complete denial and the defendant testified at length. He was supported by character witnesses who testified as to his good repute for honesty and veracity.

By agreement, the case was tried without a jury, and at the conclusion of all of the testimony Judge Morris, who presided, made general and special findings convicting the defendant on seven of the eight counts in the perjury indictment.

The record indicates the State moved for sentence only on the perjury indictment and that no further action was taken upon the fasle swearing indictment. The latter was apparently disposed of by the trial judge in his remark that the findings made on the perjury indictment were also dispositive of the false swearing indictment. In any event, the indictment charging false swearing is not at issue before us.

The defendant was sentenced to two years on probation and fined $1,500.

The defendant urges the findings of the court and the judgment of conviction are contrary to the weight of the evidence and are the result of passion, prejudice and mistake engendered by inflammatory matter, and that not only did the State fail to prove Dr. Sullivan corruptly and willfully testified to opinions which he did not hold, but further, the State failed to prove by reliable and competent evidence that the opinions expressed were in fact untrue or invalid.

Perjury was defined by early common law '* * * as the wilful assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether in open court, in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding.' 41 Am.Jur., Perjury, § 2, p. 4.

The offense is now controlled by statute in most jurisdictions, but although these vary to some degree in language, basically there is little difference from the common law conception. In general, the state legislatures have defined perjury as willful and corrupt false swearing or affirming, under an oath lawfully administered in the course of a judicial or quasi-judicial proceeding, to some matter material to the issue. State v. Sullivan, 25 N.J.Super. 484, 96 A.2d 680 (App.Div.1953), citing 41 Am.Jur., supra, § 2, p. 4. See N.J.S. 2A:131--1 et seq., N.J.S.A., formerly R.S. 2:157--1 et seq.

As was determined in State v. Sullivan, supra, there is a distinction between an honest but erroneous statement of opinion and a false declaration of fact. The latter is held to be a matter of perjury. 41 Am.Jur., supra, § 6, p. 6; 70 C.J.S., Perjury, § 5, p. 462.

Similarly, however, where the existence or nonexistence of an opinion or belief is in itself a material matter of fact, a false statement as to such may constitute the offense. 41 Am.Jur., supra, § 6, p. 6; 70 C.J.S., supra, § 5, p. 462.

The defendant's position here is that it is practically impossible to convict a doctor of perjury. Apart from epistemological problems concerning the imperfections of the senses and the consequent relativity of all knowledge, it is urged Sullivan testified only as to medical opinions and...