State v. Sullivan

Decision Date11 May 1953
Docket NumberNo. A--395,A--395
Citation96 A.2d 680,25 N.J.Super. 484
CourtNew Jersey Superior Court — Appellate Division

Harry A. Walsh, Jersey City, argued the cause for the defendant-appellant (Thorn Lord, Trenton, attorney; Frank T. Thompson, Jr., Trenton, of counsel).

Frank H. Lawton, Trenton, argued the cause for the complainant-respondent (Mario H. Volpe, Trenton, attorney).


The opinion of the court was delivered by


The substantial question is whether the indictment charging the defendant with perjury in violation of R.S. 2:157--1 (now N.J. S. 2A:131--1, N.J.S.A.), sufficiently charges that crime. Defendant's application to the Law Division to dismiss the indictment was denied and this court granted him leave to appeal therefrom.

The indictment in question, containing eight counts, specifically recites in each count portions of defendant's testimony at the second murder trial of Ralph Cooper, Collis English, McKinley Forrest, John MacKenzie, James H. Thorpe and Horace Wilson, regarding the results of his interview, examination and observation of the aforementioned defendants, in which testimony Sullivan states a conclusion as to the examined persons' mental and physical condition and the cause thereof. These excerpts of testimony are preceded by an allegation '* * * that the said J. Minor Sullivan, III, while still under said oath as such witness, on the fifth day of April, 1951, then and there knowingly, falsely, corruptly and willfully did say, depose, swear and give in evidence among other things in substance and to the effect following * * *,' and are followed by an allegation that Sullivan well knew that the condition alleged did not, in truth and fact, exist and 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, the government and dignity of the same.'

The defendant asserts that the indictment is predicated upon professional opinions and beliefs of the defendant and fails to contain allegations necessary to charge a crime; that the indictment does not properly apprise the defendant of the particular offense with which he is charged and that the allegation of falsity is not charged with such certainty as to enable a person of common understanding to know what is intended; that there is an utter failure to set forth the contradictory facts upon which falsity depends and that this statement by way of antithesis must be set out in the indictment, else it be defective. It is stated that the use of terms of generality, conclusion and bare allegation is insufficient and defective to the indictment.

The State contends that the indictment is not defective, but that it sets forth every constituent element of the crime of perjury; and that the court's refusal to quash the indictment will not be set aside unless it appears that the discretionary power was capriciously and arbitrarily exercised.

The rule governing the validity of indictments is quite explicit and well settled.

'* * * Our State Constitution guarantees that 'No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury,' Art. I, par. 8. Our rules of court provide that 'The indictment or accusation shall be a written statement of the essential facts constituting the offense charged.' Rule 2:4--11(a). The purpose of the indictment is to inform the accused of the nature of the offense charged so as to enable him to make an adequate defense as well as to avail himself of his conviction or acquittal to avoid the threat of double jeopardy. State v. Morano, 134 N.J.L. 295, 47 A.2d 419 (E. & A.1946). The indictment also serves to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be obtained, U.S. v. Hess, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516 (1888). The indictment must be examined in the light of the constitutional provisions, the rules of court and the decisions.' State v. Winne, 12 N.J. 152, 96 A.2d 63, 76.

Perjury has been defined, at 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; 70 C.J.S., Perjury, § 1, p. 457. The codification of statutory law has made some changes in this conception of the offense in certain jurisdictions. 'The offense, however, is now largely controlled by statute, and, although the various definitions do not differ to any great extent from the commonlaw definition, is generally defined as the wilful and corrupt false swearing or affirming, after an oath lawfully administered, in the course of a judicial or quasi-judicial proceeding as to some matter material to the issue or point in question.' 41 Am.Jur., supra, sec. 2, p. 4. State v. Dayton, 23 N.J.L. 49, 53 (Sup.Ct.1850); State v. kowalczyk, 4 N.J.Super. 47, 66 A.2d 175 (App.Div.1949); reversed on other grounds, 3 N.J. 51, 68 A.2d 835 (1949); R.S. 2:157--1.

In the matter sub judice, that the offense charged is one committed in the course of a judicial proceeding cannot be denied. The defendant concedes that there might arise situations where a person could be charged with perjury based upon his opinions or beliefs. However, defendant argues that in such cases the existence or non-existence of belief in the conclusion reported becomes the basis of the perjury charge, not the existence or non-existence of the facts forming the basis of the opinion or belief.

As to statements of opinion it is said:

'The broad general rule to the effect that a statement to support a charge of perjury must not be based upon an opinion is subject to the qualification that a statement of belief or opinion, under oath, constitutes the offense when, as a matter of fact, the witness had no such belief or opinion.

'If, in a prosecution for perjury, questions are asked of a general character, upon material issues, either involved in the case itself or to discredit the witness, and he answers falsely, and it is shown that this is deliberate and wilful, his answer will afford the basis for a prosecution for perjury, even though the questions may be too general to form the basis for the impeachment of the witness.' 41 Am.Jur., supra, sec. 6, p. 6.

There is a distinction between an honest but erroneous statement of opinion and a false statement of fact. The latter is held to be a matter of perjury. 70 C.J.S., supra, § 5, p. 462. Similarly, it is held that a false statement of opinion or belief may constitute the offense of perjury and in such matters the existence or non-existence of an opinion or belief is in itself a material matter of fact. 70 C.J.S., supra, § 5, p. 462.

Counsel were unable to find a New Jersey case construing an indictment charging the offense of perjury predicated upon a false statement of opinion or belief. Similarly, our research has not revealed any applicable New Jersey decisions. In examining the authorities of foreign jurisdictions, we find the cases of Williford v. State, 53 Ga.App. 334, 185 S.E. 611 (Ct.App.1936); Cassady v. State, 18 Okl.Crim.Rep. 568, 197 P. 171 (Cr.Ct.App.1921); and People v. Agnew, 77 Cal.App.2d 748, 176 P.2d 724 (D.Ct.App.1947), hold, in effect, that if a person...

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8 cases
  • State v. Sullivan
    • United States
    • New Jersey Supreme Court
    • April 1, 1957
    ...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 The false s......
  • State v. Engels
    • United States
    • New Jersey Superior Court — Appellate Division
    • August 24, 1954
    ...and wilfully made under oath, to mislead the court or jury, constitutes the offense of false swearing. Cf. State v. Sullivan, 25 N.J.Super. 484, 490, 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. ---......
  • State v. Winters
    • United States
    • New Jersey County Court
    • March 1, 1976
    ...After statutory codification the element of intent to mislead was replaced by the requirement of materiality. State v. Sullivan, 25 N.J.Super. 484, 96 A.2d 680 (App.Div.1953). The common focus of both the common law and the statutory requirements seems to be on the potential effect of the f......
  • State v. Doto
    • United States
    • New Jersey Supreme Court
    • November 8, 1954
    ...if they state that the testimony of the defendant was false. 41 Am.Jur., Perjury, sec. 33, p. 20. Cf. State of New Jersey v. Sullivan, 25 N.J.Super. 484, 492, 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......
  • Request a trial to view additional results

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