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State v. Lombardo

Decided: June 24, 1952.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOMINICK LOMBARDO, DEFENDANT-PETITIONER, AND JOSEPH MARTINO, ET AL., DEFENDANTS



McGeehan, Jayne and Goldmann. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The present appeal prosecuted by leave of this court pursuant to Rule 2:5-3 (b), (6) (a), brings critically to our attention three indictments of the grand jury presented to the court against the defendant Lombardo.

The indictment designated No. 985-51 embodying seven counts purports to charge the commission by the defendant of the crime of false swearing in violation of R.S. 2:157-4; indictment No. 986-51 is designed to allege in nine separate counts acts of malfeasance by the defendant in his official capacity as undersheriff and custodian of the prisoners confined in the county jail; the remaining indictment No. 991-51 implicates the defendant in a conspiracy with others to pervert and obstruct justice or the due administration of the laws contrary to R.S. 2:119-1.

Applications were addressed to the County Court for the dismissal of each of the three indictments grounded predominantly upon the contention that each is too deficient in its allegations to charge the commission of a crime. The motions were denied by an order of the court made on March 27, 1952, 18 N.J. Super. 511 (Cty. Ct. 1952), the propriety of which we are requested by counsel for the defendant and for the State to determine.

In the environment of the early common law the validity of an indictment was considered inter alia in respect to its strict conformity with the established accuracy and

nicety of language, but gradually the courts came to recognize that much of the precautious tautology and prolixity which had characterized indictments could be safely disregarded without any infringement of the right of the accused to be informed of "the nature and cause of the accusation." It is now the general rule that an indictment which on its face is in all other respects sufficient will not be nullified merely because it is inartfully or awkwardly worded or disorderly in the arrangement of its allegations.

However progressively liberal has become the legislative and judicial attitude toward the literal composition of indictments (see R.S. 2:188-5, 6, 7, 9; Rules 2:4-11, 13) and the discretionary disinclination to quash them unless palpably defective (State v. Western Union Tel. Co. , 13 N.J. Super. 172 (Cty. Ct. 1951), yet it is basically imperative that an indictment allege every essential element of the crime sought to be charged. State v. Schmid , 57 N.J.L. 625 (Sup. Ct. 1895); State v. Solomon , 97 N.J.L. 252 (E. & A. 1922); State v. Bleichner , 11 N.J. Super. 542 (App. Div. 1951).

The omission of an essential element cannot be supplied by inference or implication. State v. De Vita , 6 N.J. Super. 344 (App. Div. 1950); State v. Lustig , 13 N.J. Super. 149 (App. Div. 1951).

In the interest of expedition in the disposition of these interlocutory matters we will express our conclusions with an economy of comment.

The statute relating to false swearing read as follows:

"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 ...


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