On writ of Certiorari and motion to quash.
For the State of New Jersey, Horace K. Roberson, Prosecutor of the Pleas of Hudson County, and William P. Gannon, Assistant Prosecutor.
For the defendants-prosecutors, Edward J. McFeeley and Bernard J. McFeeley, Thomas H. Brown and Frank G. Schlosser.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. Defendants move to quash an indictment which was returned February 27th, 1945, and which charges that the defendants, on the 6th day of January, 1942, and from thence continuously to and including the 20th day of February, 1945, were public officers in the City of Hoboken, in the County of Hudson, namely, that Edward J. McFeeley was chief of police of the Hoboken police department and Bernard J. McFeeley was an inspector of police of the same department; that as such the defendants were intrusted with the governance, control and management of the police department and the police force of the said city and with the direction and control of the members therein; that at all the [136 NJL Page 104] aforesaid times the defendants were charged with the public duty of using and exercising and causing to be used and exercised all proper, reasonable and effective means and all means within their power for preserving the public peace and insuring good order in the City of Hoboken and for the suppressing of gaming, bookmaking, betting upon the event of horse races, gaming resorts, horse-race pool rooms and disorderly houses, and for the making, instigating and filing of proper complaints charging the proper person with violations occurring within the said City of Hoboken of the laws of this state relating to gambling, and for the seizing, capturing, destruction and rendering useless of furniture, implements, paraphernalia and equipment used for gaming and not to return them to the person or persons owning the same or to any other person, and for the care, custody and control of all official records, memoranda, documents, statements and reports of the Hoboken police department relating to and concerning the violation of the laws of this state relating to gambling, and that the public duties aforesaid at all the mentioned times were enjoined by law upon the said defendants, public officers as aforesaid, and that they had under their direction, management and control numerous captains, lieutenants, sergeants, detectives, patrolmen and other officers and members of the police force of the City of Hoboken and were vested with full and adequate power and lawful authority for the proper enforcement of the said public duties as enjoined upon them by law; that on January 6th, 1942, a gaming resort, horse-race pool room and establishment, wherein the practice of bookmaking upon the running of horses, mares and geldings and the betting on horse races was conducted, was kept, maintained and operated at No. 59 Washington Street and was raided by the defendants and that certain named persons were arrested and certain described furniture, implements, paraphernalia and equipment (all capable of, intended for and used in the said practice of bookmaking and betting) were seized and captured; but that nevertheless the defendants, being officers as aforesaid and well knowing the premises aforesaid and each of them, but disregarding the public duty so by law enjoined upon them, then and there did continuously,
unlawfully and willfully neglect and omit to perform the said public duties so enjoined upon them (naming each seriatim as above set forth) and that they did then and there continuously, unlawfully and willfully neglect and omit to enforce the laws of this state in the City of Hoboken with respect to gambling, bookmaking and betting upon the running of horses, mares and geldings and the keeping and maintaining of gambling resorts, horse-race pool rooms and disorderly houses where the laws of this state concerning gambling were habitually violated in manner and form aforesaid, but on the contrary then and there unlawfully and willfully did suffer and willfully permit gambling in the manner and form aforesaid and the proper complaints charging the proper persons with violation of the laws of this state relating to gambling and occurring within the City of Hoboken to be unmade, uninstigated and unfiled and the furniture, implements, paraphernalia and equipment so seized and captured not to be destroyed and rendered useless but to be returned to the person owning the same and so continued to be used for gaming, and the official records, memoranda, documents, statements and reports of the Hoboken police department relating to and concerning the violation of the laws of this state relating to gambling to be uncared for, taken and removed from their custody and control, all without interference on the part of the said defendants and without the proper, reasonable and effective endeavor on their part, and without using all lawful means within their power, for the enforcement of the laws of this state for the suppression and prevention of keeping and maintaining of all gambling in the manner and form aforesaid contrary to the form of the statute in such case made and provided against the peace of this state, the government and dignity of the same.
It is contended by the defendants that the indictment was found after the period of the statute of limitations had expired. That statute (R.S. 2:183-2) provides:
"No person shall be prosecuted, tried or punished for any offense not punishable with death, unless the indictment therefor shall be found within two years from the time of committing the offense or incurring the fine or forfeiture. * * *"
If all of the offenses charged against the defendants were of acts which were due to be done or omitted by them before the beginning of the two year period and not thereafter, the point would have been well made; but the statute fixes no period within which it is the duty of police officials to take steps toward the laying of complaints and the prosecuting of violators of the law. Some crimes are continuing. State v. Ireland, 126 N.J.L. 444. An unlawful return of gambling furniture is not a continuing crime. If seized furniture is returned, the offense is complete as of the time of the return; there is no offense as to it until then and none thereafter. If, in the instant case, the furniture seized on January 6th, 1942, was unlawfully returned before February 27th, 1943, the statute bars a prosecution begun on February 27th, 1945; and if the furniture was returned after February 27th, 1943, the indictment, for the sake of certainty and to enable the accused to plead intelligently, should assign a date within the two year period. But on the other hand, if on January 6th, 1942, certain persons were apprehended by the police in the act of committing a misdemeanor, those persons would be subject to prosecution for two years thereafter and no reason is shown to us why a police officer whose duty is to lodge a proper complaint against them does not remain under that duty throughout the period when the offenders are liable to prosecution, provided, of course, the officer retains his public position that long. Therefore, according to the allegations of the indictment, the defendants were under such a duty until January 6th, 1944, and if, as alleged, they willfully neglected throughout that period to perform the duty of lodging complaints, they were subject to prosecution on account thereof at the time the present indictment was returned. We conclude that the statute of limitations had not run against that accusation.
Defendants also assert that the indictment fails to state the nature and particularity of the accusation. Bookmaking and poolselling, and the operating of a place of resort for such practices, are made a misdemeanor by R.S. 2:135-3, amended chapter 205, Pamph. L. 1940; so, as to ...