Freund, Stanton and Conlon. The opinion of the court was delivered by Freund, J.s.c. (temporarily assigned).
Albert Siegler appeals from a conviction for false swearing in an affidavit of title executed in connection with a mortgage loan, in violation of R.S. 2:157-4.
On August 24, 1950 the defendant entered into a written contract with Constant A. Dunay and Helen M. Dunay, whereby he agreed to sell and convey, free of all encumbrances, premises No. 2723 North Wood Avenue, in Linden, New Jersey, upon which he was to construct a 1 1/2-story house for the sum of $14,000, to be paid at various stages of construction. Title was to be closed on December 1, 1950, but was not. By that time, however, the Dunays had paid $10,000 on account of the purchase price and had, through Siegler, applied for a $4,000 mortgage from the First Federal Savings and Loan Association of Montclair.
On January 26, 1951 Siegler executed and delivered to the same financial institution a bond secured by a mortgage for $9,000 on the premises in question. At the closing, Siegler, at the request of the mortgagee, executed an affidavit of title, in which no reference was made to the contract with the Dunays, although it was at that time still in full force and effect. The affidavit, inter alia , states:
"Albert Siegler, being duly sworn, says * * * no person has any contract for the purchase of, or claim to or against, said premises, except as hereinafter stated; and that the same are now free and clear. * * *
Deponent makes this affidavit to induce First Fed. Sav. & Loan Asso. of Mtc to accept a mortgage of said premises and pay the consideration therefor, knowing that it relies upon the truth of the statements herein contained."
In the body of the affidavit, the space following the word "EXCEPTING" was left blank. The jurat reads: "Sworn to before me at Montclair, N.J., this 26th day of January, 1951, C. N. Macknet, An Attorney at Law of New Jersey."
The appellant first argues that the element of willfulness on his part was not proved. It is well established that the burden of proof is upon the State to prove the statutory requirements, but not necessarily by direct evidence; it may be by proof of such circumstances and conduct as would entitle the jury to infer beyond a reasonable doubt that the defendant willfully swore falsely. State v. Collins , 63 N.J.L. 316, 321 (E. & A. 1899); State v. Walsh , 9 N.J. Super. 43, 46 (App. Div. 1950).
The statute, R.S. 2:157-8, defines willfulness as follows:
"* * * Willful shall, for the purposes of this article, be understood to mean intentional and knowing the same to be false."
The proofs show that at the mortgage closing Mr. Macknet, the mortgagee's attorney, handed the affidavit to Siegler for his signature and that he signed it. Mr. Macknet testified that after taking Siegler's oath he subscribed his name beneath the jurat. The affidavit was received in evidence without objection. The defendant admitted signing it, but charges that it was not read to him, although ...