On certification to the Appellate Division of the Superior Court whose opinion is reported in 4 N.J. Super. 47.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Burling and Ackerson. For affirmance -- Oliphant and Wachenfeld. The opinion of the court was delivered by Case, J. Wachenfeld, J. (dissenting).
The defendant-respondent Kowalczyk is known also in the proceedings as Kowal and will be so called herein. He was tried and convicted on an indictment in Camden County. On appeal the Appellate Division reversed. The certification is on the petition of the state.
The indictment contained two counts, both of which charged willful false swearing before a Camden County grand jury; the first preliminarily charged Kowal with willfully and falsely swearing that he did not know one Benjamin Anyzcek and could not identify a photograph of him and with willfully and falsely swearing that he did know him and could identify a photograph of him, and the count concluded with the charge that the statements so made under oath were contrary and that one or the other of them, to Kowal's knowledge, was false and "contrary to the form of the statute * * *;" the second followed the same format and charged Kowal with willful false swearing in that he first testified that he did not, and later testified that he did, know the business in which Anyzcek was engaged.
Petitioner argues that the Appellate Division erred in holding that the defendant could and did purge himself of the offense of false swearing by correcting his testimony at the same hearing before the grand jury and that the court
further erred in holding that the burden was upon the state to prove which statement was false and in holding that the state had failed to sustain the burden.
R.S. 2:157-4, 5 provides:
"4. Any person, his procurers, aiders and abettors, who shall willfully swear falsely in any judicial proceeding, or who shall willfully swear falsely before any person authorized by virtue of any provision of law of this state to administer an oath and acting within his authority, shall be guilty of false swearing.
"5. Where a person has made contrary statements on his oath or oaths administered within the provisions of this article, it shall not be necessary to allege in an indictment or allegation which statement is false but it shall be sufficient to set forth the contradictory statements and allege in the alternative that one or the other is false.
"Proof that both such statements were made under oath duly administered shall be prima facie evidence that one or the other is false; and if the jury are satisfied from all the evidence beyond a reasonable doubt that one or the other is false and that such false statement was willful, whether the same was made in any judicial proceeding or before a person authorized to administer an oath and acting within his authority, it shall be sufficient for a conviction."
The indictment charged offenses against that statute. The court below so held, and we concur. It is also evident that the offenses come within the purview of section 5, supra.
We further agree that the irregularity of the indictment in charging that each of the opposite statements was false does not invalidate the judgment of guilt. The trial went on the accusation that the accused had made specified contradictory statements on oath, contrary to the provisions of the statute, and the statute was read by the judge to the jury by way of instruction. The record discloses no confusion or uncertainty on the trial of the indictment with respect to the particulars of the charge. The defendant, as a witness at his trial, stated that in making the original denials of knowledge, acquaintanceship and recognition he had been confused; but there was no confusion at the trial about what issue was being tried or about where the truth lay. The conceded ...