State v. Winters

• Decision Date: 01 March 1976
• Citation: 355 A.2d 221,140 N.J.Super. 110
• Parties: STATE of New Jersey, Plaintiff, v. Richard WINTERS, Defendant. (Criminal), New Jersey
• Court: New Jersey County Court

Page 110

140 N.J.Super. 110

355 A.2d 221

STATE of New Jersey, Plaintiff, v. Richard WINTERS, Defendant.

Middlesex County Court,

Law Division (Criminal),

New Jersey.

March 1, 1976.

Lewis White, Asst. Prosecutor, for the State (C. Judson Hamlin, Prosecutor of Middlesex County, attorney).

Theodore W. Geiser, Newark, for defendant (McElroy, Connell, Foley & Geiser, Newark, attorneys).

COHEN, J.C.C.

Defendant was indicted for perjury allegedly occurring during his testimony in the trial of a civil cause. He moves for dismissal of the indictment. His sole substantial ground is that the allegedly false testimony was not 'material,' and therefore the charge of perjury will not lie.

Two things are clear. The first is that, to support a charge of perjury, as opposed to false swearing, the testimony not only must be knowingly false, but also must be material to the issues before the forum in which it was given. Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929); State v. Sullivan, 24 N.J. 18, 130 A.2d 610 (1957), cert. den., 355 U.S. 840, 78 S.Ct. 52, 2 L.Ed.2d 51 (1957). The second is that the question of materiality is for the court as a matter of law, and not a question of fact for the jury. State v. Lupton, 102 N.J.L. 530, 133 A. 861 (Sup.Ct. 1926); Gordon v. State, 48 N.J.L. 611, 7 A. 476 (E. & A.1886).

Two things are unclear, both for the reasons that New Jersey courts have not had recent occasion to address them. First is the propriety of pretrial determination of the motion to dismiss. Second is the meaning of 'materiality' as a necessary element of the crime of perjury.

Pretrial disposition of the motion seems proper. The materiality of the disputed testimony involves its setting in the context of a civil cause already tried. Now available for this court's review are the pleadings and the full transcript of the civil trial. There is nothing that would be presented at the perjury trial that would further inform this court on the issue of materiality, since the proofs on that issue would not normally emerge before the jury. The State has not objected to the motion as premature. No purpose would be served by putting the State and defendant to a criminal trial before considering a possibility dispositive issue that is now fully ripe for decision. It might be otherwise if the State claimed to have oral testimony to present at trial on an issue properly before the jury that also touched the issue of materiality. Cf. State v. Shipley, 10 N.J.Super. 245, 250, 77 A.2d 38 (App.Div.1950).

Another matter needs facing. Some of the old cases say that the mere averment of materiality in the indictment is sufficient to defeat a motion to dismiss. See, e.g., State v. Voorhis, 52 N.J.L. 351, 20 A. 26 (Sup.Ct.1889); State v. Beard, 25 N.J.L. 384 (Sup.Ct.1856). If materiality is an essential element of the offense of perjury, it is hard to see how mere assertion forecloses further inquiry. It could be so only if materiality were handled as a matter for factual determination by the jury or for legal decision on the basis of trial evidence. Perhaps the Voorhis and Beard courts so conceived the issue. To the extent they did so, they no longer accurately state the law. The issue is a legal one and ought to be considered before trial if, as here, it is ripe for decision.

The matter arises here in the setting of a civil action for damages for breach of contract. Toto Bros., Inc., an earth materials excavator, sought payment from Hess Brothers, Inc., a road builder, for earth materials sold and delivered pursuant to a Hess purchase order. The existence of a contract was not in issue; its proper interpretation was. The unit price of $2.15 a yard was not in question; the quantity actually delivered was hotly disputed.

Toto contended that its contractual duty was to deliver truckloads of 17 cubic yards each to the site where Hess was constructing a highway for the New Jersey Department of Transportation. Toto further argued that it delivered the quantities it billed for; that there was no oral modification of the original agreement, and that it was unpaid by more than $100,000. Hess's position was that Toto continually delivered short loads; that, when confronted during the course of its nonconforming deliveries, Toto orally agreed to make an equitable adjustment for all of its shortages, and that it was fully paid for the materials it actually delivered.

Toto's principal witness to the original agreement and its performance was Anthony Toto, Jr. He testified that he delivered full loads as required; that Hess had people on the job receiving the deliveries without complaint; that he never agreed to make any adjustment to his billing, and that Hess simply stopped paying him one day without justification.

Hess' principal witness was its general superintendent Richard Winters, defendant here. Generally, his position was that he made constant complaints of shortages to Anthony Toto, Jr., who agreed to adjust final billings in the future after receipt of the Department of Transportation's measurement of earth materials in place. Such measurements, according to Winters, eventually showed shortages in the neighborhood of 20%.

The matter apparently came to a head in October 1973 after Toto had delivered some 16,000 truckloads of material. Toto had something over $100,000 in unpaid billings at the time. Winters advised Toto of the shortages he said were revealed by the Department of Transportation's measurements, and the resulting calculated shortages almost equalled Toto's unpaid billings. The outcome was Toto's refusal to make further deliveries and initiation of the civil action.

In describing the course of dealings between Toto and Hess, Winters testified that he knew Toto was making short deliveries but that he relied on the promise of an adjustment and had to continue to accept nonconforming performance to keep the road-building job going. He testified that Hess had been paying Toto bimonthly against billings until August 1973. In that month, said Winters, the State's payments to Hess stopped as a result of some internal accounting problem. He said he described the problem to Toto, who agreed to wait for his money. During the months of August and September, Winters went on, the State failed to make its payments, and for that reason Hess did not pay Toto. In October the final confrontation took place between Hess and Toto on the question of shortages. The testimony relating to the State's failure to pay Hess and Hess' resulting failure to pay Toto arose almost exclusively on Winters' cross-examination.

The indictment charges that in August and September the State did, in fact, make substantial payments to Hess and that Winters lied when he told the jury the contrary. There was evidence brought before the jury in rebuttal that the State did make sizable payments to Hess in August and September.

The trial court gave an instruction on the principal of Falsus in uno, falsus in omnibus, specifically related to Winter's testimony. The jury, after a lengthy and technical trial that included key areas whose resolution requires credibility findings, found rather quickly for plaintiff Toto in the full amount of its claim.

The meaning of 'materiality' as an element of perjury has not recently been explored in New Jersey. Certainly, it is something other than materiality in the evidentiary sense. United States v. Whitlock, 456 F.2d 1230 (10 Cir. 1972). See American Process Co. v. Pensauken Brick Co., 78 N.J.L. 658, 75 A. 976 (E. & A.1910). See also Evid.R. 1(2), 30, 53 and 55.

Some hints may be found in the old cases. In State v. Voorhis, 52 N.J.L. 351, 20 A. 26 (Sup.Ct.1889), defendant had testified in a civil action that plaintiff bank did not charge the borrower annual interest at a rate greater than 6%. The indictment charged that the testimony was material and willfully false. The issues in the civil case are not revealed in the opinion, but it is apparent that usury was one of them. That being so, defendant's false testimony went to the heart of an affirmative defense. The testimony was held to be material under the test that 'the testimony will be deemed material whenever it tends directly or circumstantially to prove the matters in issue.' 52 N.J.L. at 356, 20 A. at 28.

In Braeutigam v. State, 63 N.J.L. 38, 42 A. 748 (Sup.Ct.1899) a false affidavit was held not to support a perjury indictment where it was submitted in the trial of a civil cause and was not admissable on the merits but only in connection with a pleading matter.

State v. Sweeten, 83 N.J.L. 369, 85 A. 311 (Sup.Ct.1912), involved allegedly false testimony before a grand jury bearing directly on the question of whether official misconduct had taken place. It was patently material to the grand jury's inquiry. Since a grand jury proceeding is by nature open-ended and not defined and limited by pleadings, as a civil trial is, the standard of materiality...