For the plaintiff in error, Oliver Randolph (Robert Queen, of counsel).
For the defendant in error, William A. Wachenfeld, Prosecutor of the Pleas; Donald C. Fox, Assistant Prosecutor and C. William Caruso, Special Assistant Prosecutor.
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a criminal case. Plaintiff in error, defendant below, was convicted of willfully swearing falsely and was sentenced to be imprisoned in the penitentiary of Essex County for a term of eighteen months at hard labor. Defendant appeals. The judgment under review is before us on a writ of error (R.S. 2:195-1), and on the entire record had upon the trial of the cause. R.S. 2:195-16.
The indictment, trial and conviction were based upon the provisions of R.S. 2:157-4 to R.S. 2:157-8, inclusive. It would serve no helpful purpose to detail the allegations of the indictment. It should suffice to observe that the indictment alleges, in substance, that defendant did "willfully swear falsely" while under oath (R.S. 2:157-4) in one or the other of the "contrary statements" (R.S. 2:157-5) which he made in two different judicial proceedings, both before Judge Richard Hartshorne, while testifying in a criminal case in the Essex County Court of Quarter Sessions, one statement having been made on June 1st, 1943, and the other on June 14th, 1943. Although it is "not necessary" to prove their "materiality" (R.S. 2:157-6), the contradictory statements relate to the question as to whether or not defendant had been in fact "graduated from the University of Chicago Law School" in "1927." The indictment alleges (by setting down the questions posed to defendant and his answers) that on the first occasion (June 1st, 1943), the defendant swore that he had been "graduated from the University of Chicago
Law School" in "1927," and that on the second occasion (June 14th, 1943), he swore that he was not a "graduate of any law school" although he qualified that answer several times by saying that "if" he swore as he did on the first occasion he was "mistaken," he made a "mistake."
Two days before the trial of the instant case, counsel for defendant, with leave of the court, withdrew defendant's plea of not guilty and moved to quash the indictment on the ground "that the facts charged in the indictment do not constitute the crime of false swearing as defined in title 2:157-4 and 157-8 in that there are no contradictory statements set forth in the indictment within the meaning of the statute."
At the trial no proof was offered by or for the defendant. His counsel conceded that the "statements" (in form of questions and answers) set down in the indictment were "an accurate transcript" of the stenographer's report as to what defendant had sworn to in both judicial proceedings. The defense, as indicated by counsel's opening, was that the statements made by the defendant "were not willfully false."
The stenographer who took and transcribed the testimony of defendant at both proceedings, read into the record of this case, with consent of counsel for the respective parties, the questions and answers incorporated in the indictment. That defendant testified under oath and that the proceedings were judicial were also conceded for defendant. On the record so made the trial judge submitted the case to the jury.
Defendant sets down seven assignments of error and the same number of specifications of causes for reversal. ...