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State v. Eisenstein

Decided: October 17, 1951.


Jacobs, Eastwood and Freund. The opinion of the court was delivered by Jacobs, S.j.a.d.


This is an appeal from the defendant's conviction in the Essex County Court for the crime of false swearing under R.S. 2:157-4.

During the summer of 1950 the Essex County Prosecutor conducted an investigation to determine whether crimes had been committed in connection with the alleged payment by milk dealers of large sums of money for the reinstatement of

their licenses to sell milk in Newark. It appeared that over $17,000 had been paid by them to a Newark attorney and that over $16,000 thereof had been turned over to the defendant. In response to the prosecutor's request the defendant voluntarily appeared on July 24, 1950, at the prosecutor's office for questioning. He was attended by his counsel, was advised of the nature of the investigation, and before being questioned responded affirmatively when the following oath was administered to him by notary public Leroy Hammer:

"Do you, Mr. Eisenstein, solemnly swear that the testimony you are about to give in the matter of the issuance of milk permits by the Newark Health Department, June, 1950, shall be the truth, the whole truth, and nothing but the truth, so help you God?"

After several preliminary remarks during which the defendant acknowledged that his appearance was voluntary and that he was willing to answer questions knowing that anything he said might be used against him, he was interrogated and gave detailed testimony. On August 10, 11 and 16, 1950, he gave further sworn testimony at the office of the prosecutor. All of his testimony was recorded and trans-scribed by the notary public Leroy Hammer, who is also a certified shorthand reporter. Thereafter an indictment was returned by the Essex County grand jury charging in its first and second counts that the defendant did willfully swear falsely on July 24 and August 16, contrary to R.S. 2:157-4. After trial, a verdict of guilty was returned by the jury and the defendant appeals from the ensuing judgment of conviction.

The defendant does not attack the sufficiency of the evidence supporting the finding that testimony given by him on July 24 and August 16 was willfully false. Instead, he rests his appeal upon the contention that he did not 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," as required by R.S. 2:157-4. In support he argues that the notary public did not have the required

authority to administer the oath and the prosecutor was not authorized to conduct the examination under oath.

Although notaries public are of ancient origin (Kip v. Peoples Bank and Trust Co. , 110 N.J.L. 178, 180 (E. & A. 1932)) their common law power to administer oaths generally has been doubted. Compare Collette v. Hanson , 133 Me. 146, 174 A. 466 (1934) with Wood v. St. Paul City Ry. Co. , 42 Minn. 411, 44 N.W. 308 (1890). To remove all question the New Jersey Legislature as early as 1864 provided that, with certain exceptions, oaths, affirmations and affidavits taken for any lawful purpose may be administered by notaries public. See L. 1864, p. 15; Rev. 1877, p. 740. And R.S. 41:2-1 now provides that oaths, affirmations and affidavits "necessary or proper to be made, taken or used in any court of this state, or for any lawful purpose whatever" may, apart from designated exceptions, be administered by various officers, including notaries public.

R.S. 41:2-1 is designedly comprehensive in terms and its exceptions are not material here. Cf. Brandt v. Tartar , 7 N.J. Misc. 229 (Sup. Ct. 1929); Ruckman v. Ransom , 35 N.J.L. 565 (E. & A. 1871). It expressly authorizes notaries public to administer oaths, affirmations and affidavits which are proper to be made for a lawful purpose. The defendant contends, however, that his examination under oath was within the exclusive power of the grand jury and beyond the authority of the prosecutor and that, consequently, it was not for a lawful purpose within the contemplation of R.S. 41:2-1.

The prosecutor is charged with the prosecution of the criminal business (R.S. 2:182-4) in his county and directed to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws (R.S. 2:182-5). One of his primary responsibilities is to make appropriate investigation of alleged criminal conduct. In connection therewith and for the purpose of protecting ...

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