On motions to dismiss Indictments 475, 483 and 484 for false swearing.
The defendants Eisenstein and Powell were indicted by the Essex County Grand Jury under R.S. 2:157-4 for false swearing. Two such indictments were returned against Eisenstein, and one against Powell. Both defendants have moved to dismiss the indictments on the grounds that: (1) they do not charge the commission of any crime; (2) the two of them which are drawn so as to take advantage of R.S. 2:157-5 do not set forth such clearly contradictory statements as to justify the charge of false swearing; (3) they are vague and uncertain; and (4) they do not set forth facts to show that the notary public named therein was authorized to administer the oath to the defendants and was acting within his authority in so doing.
So far as the last ground urged (4) is concerned the indictments follow the language of the statute. The act says that any person 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. The indictments recite these words almost verbatim and consequently are sufficient to withstand an attack based upon the failure to allege the details of the notary's authority and the facts showing that he acted within his authority. (State v. Harris , 132 N.J.L. 54 (Sup.
Ct. 1944); State v. Joseph L. Sigretto & Sons , 127 N.J.L. 578, 581 (Sup. Ct. 1942); State v. Ellenstein , 121 N.J.L. 304, 325 (Sup. Ct. 1938)). If the details are desired by the defendants avenues of discovery are open to them. (State v. Sigretto, supra, p. 581; Rule 2:4-14.)
The first three grounds can be considered as one. Basically the contention is that the statements in the three counts of one of the Eisenstein indictments, and in the single count in the Powell indictment, are not so "unequivocally contrary" "that the utterance of the one required the immediate negation of the other."
All three of the cases referred to above proclaim the doctrine that an indictment will not be dismissed except on the "clearest and plainest ground." Likewise they set down the test of validity to be whether or not it sets forth "with reasonable certainty all of the facts necessary to render the offense judicially apparent."
In applying the test here an examination must be made of the specific testimony given by the defendants on the different occasions to determine if they appear sufficiently opposed to each other to "render the offense judicially apparent."
In the first count of indictment No. 475 against Eisenstein a number of inconsistencies appear in his two testimonial utterances with respect to a certain check. On July 24, 1950, Eisenstein swore that one F. Baxter, who he thought lived in Fairdale, Delaware, is a producer, presumably of milk, and that he gave Baxter a check for $253.69 for milk. He cashed this check for Baxter. Then he said that one Sylvia Gray gave him some cash and he gave her the check.
On August 16, 1950, he swore that Baxter was a carpenter and builder in Long Branch, New Jersey, and that he worked for Sylvia Gray. On being shown the same check bearing endorsements ostensibly made by F. Baxter and Sylvia Gray and asked what Sylvia Gray "got the money for" he said "I liked her looks, that is why I gave it to her."
Further, the plain conclusion from the first testimony about cashing the check for Baxter is that ...