State v. De Vita
| Decision Date | 14 February 1950 |
| Docket Number | No. A--82,A--82 |
| Citation | 71 A.2d 390,6 N.J.Super. 344 |
| Parties | STATE v. DE VITA. |
| Court | New Jersey Superior Court — Appellate Division |
John E. Toolan, Perth Amboy, argued the cause for the appellant.
Donald G. Collester, Clifton, argued the cause for the respondent (Nelson F. Stamler, Deputy Attorney General).
Before Judges JACOBS, DONGES, and BIGELOW.
The opinion of the court was delivered by
BIGELOW, J.A.D.
The defendant appeals, by leave of the court, from an order of the Passaic County Court denying his motion to dismiss an indictment which reads as follows, omitting, however, the merely formal parts:
'The Grand Jurors present that on August 23, 1949, there was pending in the New Jersey Superior Court, County of Passaic, a certain indictment against Harry Gourley; that among others who testified before the Grand Inquest was one McGrath, and that his testimony became evidential to the investigation and prosecution of the said indictment.
'That Michael U. DeVita, knowing that the said indictment was pending 'did contrive and intend the due course and execution of justice, to obstruct, impede and prevent, did unlawfully, corruptly and wickedly entice, solicit and persuade the said Charles A. McGrath to abandon, withdraw and alter his testimony from the further accusation and prosecution of the said Harry Gourley.'
The indictment was not designed to charge a statutory offense, but rather a common law crime. While it seems to embrace two separate charges,--that DeVita contrived and intended to obstruct justice and that he solicitated and persuadad McGrath to do certain things,--yet the first is entirely too uncertain to stand alone. The second branch of the charge must be taken as the specification of the means by which DeVita sought to accomplish the first: He solicited McGrath, thereby intending to obstruct justice. Whether the indictment charges him with commission of a crime depends on what it alleges he solicited McGrath to do. As we understand counsel for the State, the accusation is that DeVita solicited and persuaded McGrath to testify falsely upon the trial of the indictment. This, in substance, is a charge of subornation or attempted subornation of perjury or false swearing. Falsity is the prime essential and this the indictment does expressly not aver.
The Prosecutor argues that the adverbs 'unlawfully, corruptly and wickedly' serve in the place of a direct charge of falsity. Wickedly is the counterpart of the phrase found in the old indictments, 'moved by the instigation of the Devil'; it expresses only a moral judgment and is immaterial to the legal question raised. Unlawfully does not aid the indictment, for it is merely a conclusion of law. State v. Riggs, 91 N.J.L. 456, 106 A. 216 (Sup.Ct.1918). Corruptly is a term of varied meaning. Sometimes it is the equivalent of unlawfully. U.S. v. Johnson, 26 F. 682 (C.C.1885). Or it implies some improper pecuniary or other advantage sought in the transaction. State v. Johnson, 77 Ohio St. 461, 83 N.E. 702, 21 L.R.A., N.S., 905 (Ohio 1908). Or it may imply an improper motive in the actor. Chicago City Ry. Co. v. Olis, 192 Ill. 514, 61 N.E. 459 (Ill.1901). But all this leads only to argument and inference. The essential facts...
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State v. Williamson
...may also be able to plead his conviction or acquittal in bar of another prosecution for the same offense.' State v. De Vita, 6 N.J.Super. 344, 347, 71 A.2d 390, 391 (App.Div.1950). Examples of indictments which failed to meet the enunciated tests of specificity are to be found in the cases ......
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State v. Winne
...or legal sufficiency than these, and reasonable certainty is a prerequisite to the validity of an indictment. State v. DeVita, 6 N.J.Super. 344, 71 A.2d 390 (App.Div.1950). Consequently, I determine preliminarily that these counts must be dismissed, even before proceeding to the more fundam......
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State v. Engels
...omission of the allegation of an essential element of the crime cannot be supplied by inference or implication. State v. DeVita, 6 N.J.Super. 344, 71 A.2d 390 (App.Div.1950); State v. Lustig, 13 N.J.Super. 149, 80 A.2d 309 In the present case the point of criticism centers upon the use of t......
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State v. Williamson
...the grand jury did not in fact find. State v. Sullivan, 33 N.J.Super. 138, 142, 109 A.2d 430 (App.Div.1954); State v. DeVita, 6 N.J.Super. 344, 347, 71 A.2d 390 (App.Div.1950); Linden Park Blood Horse Association v. State, 55 N.J.L. 557, 558, 27 A. 1091 (E. & A. 1893); 1 Chitty, Criminal La......