On appeal from the Cumberland County Court of Quarter Sessions.
For the respondent, Joseph B. Perskie, Special Deputy Attorney-General.
For the defendant-appellant, Harry Green and Philip L. Lipman.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
BURLING, J. Lewis R. Hogan was convicted of malfeasance under an indictment consisting of seven counts and sentenced to imprisonment at hard labor in the State Prison for a minimum term of one year and a maximum term of two years, and to pay a fine of $1,000. Each count consisted of three paragraphs, the first paragraph setting forth that the defendant was a duly elected commissioner of the City of Millville, a city governed by the Walsh Act (R.S. 40:71-1, et seq.); the second paragraph specifying that certain individuals (which individuals were different in each count) violated the gambling laws of the State of New Jersey in certain ways set forth in such paragraph; and the third paragraph specifying that the defendant, well knowing the premises and not regarding the duties of his office, but perverting the trust imposed in him and intending to obstruct the enforcement of law and justice, to enable the named individuals habitually to violate the gambling laws, did take, accept and receive bribes and pecuniary rewards from them and did grant them venal police protection and immunity from arrest. Notwithstanding the number of individuals concerned and the length of the indictment, at the close of the state's case, the Special Deputy Attorney-General took the position that each count was in the nature of a bill of particulars and that the state proceeded
wholly upon the theory of a single crime, namely, malfeasance in office. State v. Bolitho (Supreme Court, 1926), 103 N.J.L. 246; affirmed (Court of Errors and Appeals, 1927), 104 Id. 446. This theory was accepted by the defendant.
This appeal has been brought pursuant to R.S. 2:195A-1, et seq. (Pamph. L. 1946, ch. 187, effective February 1st, 1947, as amended) and in accordance with Supreme Court Rule 147 1/2. The entire record of the proceedings had on the trial has been certified and transmitted to this court.
At the trial testimony was adduced from which the following facts could be found: The City Commission of Millville was elected in May of 1945 at which time defendant became the Director of Public Safety. Thereafter gambling in many forms was conducted. This state of events culminated in the holdup of a dice game on March 15th, 1947, which holdup received extensive publicity in the local and nearby metropolitan press. As the result of this publicity and of activity on the part of local citizens, the City Commission passed a resolution calling on defendant to investigate and report upon the situation. On March 28th, 1947, defendant made a written report to the Commission, which report stated that the alleged conditions of gambling and robbing were "rumors and gossip."
Defendant was then given a leave of absence of three months and an investigation was commenced by a member of the Bar, who was engaged by the city as special counsel. Shortly thereafter, as a result of this investigation, slot machines were discovered and impounded and a Special Deputy Attorney-General was appointed to take charge of the case. As a result of the complete investigation, indictments were returned by the grand jury, among these being the one under which defendant was tried. Of the persons indicted, all pleaded guilty or non-vult, with the exception of defendant and two others who pleaded not guilty and were acquitted.
It developed at the trial that the individual who collected the bribes was one George Hinson, who had been a patrolman in the Millville police force and who had resigned during the course of the above investigation. The bribes were paid by the operators and varied from $10 to $275 per week. ...