State v. Winne

• Decision Date: 30 March 1953
• Docket Number: No. A--107,A--107
• Citation: 96 A.2d 63,12 N.J. 152
• Parties: STATE v. WINNE.
• Court: New Jersey Supreme Court

Page 152

12 N.J. 152

96 A.2d 63

STATE v.WINNE.

No. A--107.

Supreme Court of New Jersey.

Argued March 2, 1953.

Decided March 30, 1953.

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William A. Consodine, Newark, for appellant(Crummy & Consodine, Newark, of counsel; John J. Gibbons, Newark, on the brief; Theodore D. Parsons, Atty. Gen.).

John W. McGeehan, Jr., Newark, for respondent(Joseph Weintraub, Newark, of counsel).

The opinion of the court was delivered by

VANDERBILT, C.J.

The defendant, the County Prosecutor of Bergen County, was indicted on November 28, 1951, on 19 counts charging him with criminal nonfeasance in office.On June 30, 1952the defendant moved to dismiss the indictment.The trial court made an order on August 18, 1952 granting the motion, which the State seeks to review here.

The first 16 counts follow a single pattern.They identify the defendant as the county prosecutor.They allege that he was charged with the public duty of using all proper, reasonable, effective and lawful means within his power and diligence for the detection, arrest, indictment and conviction of offenders against the law in accordance with R.S. 2:182--5, N.J.S.A.Specifically they set forth his duty to suppress all disorderly houses wherein gambling is conducted in the county.They charge that he had sufficient assistance and power to enforce the public duties enjoined on him by law.Then each of the 16 indictments gives a specific place where and the times when gambling was carried on.Each of these indictments concludes by charging not only that the defendant knew of these unlawful activities but that he 'unlawfully and wilfully did neglect and omit to perform the said public duties so enjoined upon him and then and there continuously, unlawfully and wilfully did neglect, fail and omit to use and exercise, and cause to be used and exercised, all proper, reasonable, effective and diligent means within his power as Prosecutor of Bergen County, for the detection, arrest, indictment and conviction of a person or persons who kept

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and maintained the gambling house as aforesaid, wherein the practice of maintaining a resort to which persons might come for an illegal purpose, namely, for the purpose of playing at dice.'

Each of the last three counts of the indictment differs from the first 16 counts only in that, instead of charging gambling at a designated place and times, it asserts that the defendant had received a complaint charging that a member of the Rutherford Police Department(a different person being named in each count) was a corrupt public official, and that the defendant'wilfully did neglect and omit to perform the said public duties so enjoined upon him; and then and there continuously, unlawfully and wilfully did neglect, fail and omit to use and exercise, and cause to be used and exercised, all proper, reasonable, effective and diligent means and all lawful means within his power as Prosecutor of Bergen County for the detection, arrest, indictment and conviction' of each of the officers named.

Among the distinct crimes for which a public official may be indicted at common law are nonfeasance, misfeasance and malfeasance in public office, 1 Burdick Law of Crime(1946), sec. 272.The distinction between these three separate crimes relates to a familiar classification that not only runs through the law of crime but the law of torts as well.Each of these three crimes has its own distinctive elements, and one is not to be confused with either of the others.The crimes of misfeasance and of malfeasance are mentioned here, not because they are involved in the law, but because in this argument both here and in the trial court decisions dealing with misfeasance and malfeasance in public office were relied upon as if they had a bearing on nonfeasance.Such a course of reasoning about different crimes with diverse ingredients as if they were one and the same inevitably tends to confusion of thought and consequently to error in law.

Misfeasance and malfeasance are not alleged in the indictment.There is no charge of doing something wrongfully or corruptly.On the contrary, the gist of the charge here is failure to act.The basic question before us is whether

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nonfeasance in public office is properly alleged in the indictments under our practice.

I.

In judging the sufficiency of the indictments we must consider the official duties of the defendant.As we said in State v. Weleck, 10 N.J. 355, 366, 91 A.2d 751, 756(1952):

'The prescribed duties of an office are nothing more nor less than the duties cast by law on the incumbent of the office.Duties may be imposed by law on the holder of an office in several ways: (1)they may be prescribed by some special or private law, such as official action of a township committee, State v. Hageman, 13 N.J.L. 314, 321(Sup.Ct.1833), or a provision of a municipal charter, State v. Startup, supra, 39 N.J.L. 423, 425(Sup.Ct.1877);(2)they may be imposed by a general act of the Legislature as in State v. McGovern, 136 N.J.L. 115, 117, 54 A.2d 812(Sup.Ct.1947), andState v. O'Brien, 136 N.J.L. 118, 127, 54 A.2d 806(Sup.Ct.1947); or (3)they may arise out of the very nature of the office itself, seeState v. Ellenstein, 121 N.J.L. 304, 317--318, 2 A.2d 454(Sup.Ct.1938);State v. Donovan, 132 N.J.L. 319, 321, 40 A.2d 546(Sup.Ct.1945);State v. McFeeley, supra, 136 N.J.L. 102, 107--108, 54 A.2d 797(Sup.Ct.1947);andState v. Lombardo, 18 N.J.Super. 511, 520, 87 A.2d 375(Cty.Ct.1952).'

An attempt is made to identify the powers and duties of the county prosecutor with those of the Attorney-General and then to identify the powers and duties of our Attorney-General with those of the Attorney-General of England.History belies this contention.The Attorney-General of New Jersey could never have exercised the wide powers of the Attorney-General of England in the face of Article III of the Constitutions of 1844 and of 1947, distributing the powers of the government 'among three distinct branches, the legislative, executive, and judicial.No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.'

Even under the Constitution of 1776, the powers and duties of the Attorney-General of New Jersey were quite different from those of the Attorney-General of England.Especially is it to be noted that in England the prosecution

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of crime was traditionally a private matter.It was not until 1879 that the Office of Director of Public Prosecutors was established by the Prosecution of Offenses Act, 42 and 43 Vict., c. 22(5 Halsbury's Statutes of England (2d ed.), 895).Even now under this act and its amendments, 47 and 48 Vict., c. 58, and 8 Edw. 7, c. 3 (5 Halsbury (2d ed.), 904, 940), the English prosecutor need act only in offenses punishable by death, offenses against the coinage, fraudulent bankruptcies and violations of the election laws.Howard, Criminal Justice in England (1931), 98; Jackson, The Machinery of Justice in England (1940), 111.Here, however, public prosecutors superseded private prosecutors long before the Revolution.As early as 1686 we find a record of the colonial Attorney-General appearing for the king in West New Jersey.The Burlington Court Book (Reed and MillerEd. 1944), 56.In East New Jersey 'the King's Attorney-General prosecuted culprits from minor offenders to murderers.'Journal of the Courts of Common Right and Chancery of East New Jersey, 1683--1702(EdsallEd. 1937), 3 and passim.In 1703the Attorney-General was punished for nonfeasance for his failure to prosecute, 1 Keasby, Courts and Lawyers of New Jersey (1912), 377.In 1812the Attorney-General was authorized by statute'to appoint deputies to prosecute the pleas of the state in such counties as he may not be able to attend in person.'Laws of 1812 Pam., 23; Pennington's Laws 1703--1820.In 1822we find the first mention by name of a prosecutor in each county.L.1822, p. 25.This act is the precursor of the first clause of R.S. 2:182--5, N.J.S.A., on which the defendant relies heavily:

'Each prosecutor of the pleas shall be vested with the same powers and subject to the same penalties, within his county, as the attorney general shall by law be vested with or subject to * * *.'

It is important to observe, however, that the numerous civil duties of the Attorney-General have not been assigned to the county prosecutor in each county.His duties are largely, if not exclusively, on the criminal side.It is significant to

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note, moreover, the exclusive grant of his power to him on the criminal side:

'The criminal business of the state shall be prosecuted exclusively by the prosecutors of the pleas, except in counties where, for the time being, there may be no prosecutor, or where the prosecutor desires the aid of the attorney general or as otherwise provided by law.'R.S. 2:182--4, N.J.S.A.

SeeState v. Longo, 136 N.J. 589, 592, 54 A.2d 788(E. & A.1947).In 1898 the second clause of R.S. 2:182--5, N.J.S.A., which we deem controlling was enacted:

'* * * and he shall use All reasonable and lawful diligence for the Detection, arrest, indictment and conviction of offenders against the laws.'L.1898, cc. 237, 238, pp. 866--941.(Emphasis added.)

This statute has remained on the books for 55 years without challenge as to its meaning.There are no cases in New Jersey construing it.This clause clearly represents the legislative response to the problems of law enforcement that were reflected in the rapidly increasing population of the State, in the complexities of life in many urban communities and in the need for the concentration of authority in the county for the detection, arrest, indictment and conviction of criminals.Significantly, the county prosecutor of Bergen County is allowed a staff of nine county detectives.N.J.S.A. 2:181--35.They are appointed:

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