Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.
The substantial question is whether the indictment charging the defendant with perjury in violation of R.S. 2:157-1 (now N.J.S. 2 A:131-1), sufficiently charges that crime. Defendant's application to the Law Division to dismiss the indictment was denied and this court granted him leave to appeal therefrom.
The indictment in question, containing eight counts, specifically recites in each count portions of defendant's testimony at the second murder trial of Ralph Cooper, Collis English, McKinley Forrest, John MacKenzie, James H. Thorpe and Horace Wilson, regarding the results of his interview, examination and observation of the aforementioned defendants, in which testimony Sullivan states a conclusion as to the examined persons' mental and physical condition and the cause thereof. These excerpts of testimony are preceded by an allegation "* * * that the said J. Minor Sullivan, III while still under said oath as such witness, on the fifth day of April, 1951, then and there knowingly, falsely, corruptly and willfully did say, depose, swear and give in evidence among other things in substance and to the effect following * * *," and are followed by an allegation that Sullivan well knew that the condition alleged did not, in
truth and fact, exist and that Sullivan "Then and there did commit willful and corrupt perjury in manner and form aforesaid contrary to the provisions of R.S. 2:157-1 and against the peace of this State, the government and dignity of the same."
The defendant asserts that the indictment is predicated upon professional opinions and beliefs of the defendant and fails to contain allegations necessary to charge a crime; that the indictment does not properly apprise the defendant of the particular offense with which he is charged and that the allegation of falsity is not charged with such certainty as to enable a person of common understanding to know what is intended; that there is an utter failure to set forth the contradictory facts upon which falsity depends and that this statement by way of antithesis must be set out in the indictment, else it be defective. It is stated that the use of terms of generality, conclusion and bare allegation is insufficient and defective to the indictment.
The State contends that the indictment is not defective, but that it sets forth every constituent element of the crime of perjury; and that the court's refusal to quash the indictment will not be set aside unless it appears that the discretionary power was capriciously and arbitrarily exercised.
The rule governing the validity of indictments is quite explicit and well settled.
"* * * Our State Constitution guarantees that 'No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury.' Art. I, par. 8. Our rules of court provide that 'The indictment or accusation shall be a written statement of the essential facts constituting the offense charged.' Rule 2:4-11 (a). The purpose of the indictment is to inform the accused of the nature of the offense charged so as to enable him to make an adequate defense as well as to avail himself of his conviction or acquittal to avoid the threat of double jeopardy. State v. Morano , 134 N.J.L. 295 (E. & A. 1946). The indictment also serves to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be obtained, U.S. v. Hess , 124 U.S. 483, 31 L. Ed. 516 (1888). The indictment must be examined in the light of the constitutional provisions, the rules of court and the decisions." State v. Winne , 12 N.J. 152, 96 A. 2 d 63.
Perjury has been defined, at early common law, "* * * as the wilful assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether in open court, in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding." 41 Am. Jur., Perjury, sec. 2, p. 4; 70 C.J.S., Perjury, sec. 1, p. 457. The codification of statutory law has made some changes in this conception of the offense in certain jurisdictions. "The offense, however, is now largely controlled by statute, and, although the various definitions do not differ to any great extent from the common-law definition, is generally defined as the wilful and corrupt false swearing or affirming, after an oath lawfully administered, in the course of a judicial or quasi -judicial proceeding as to some matter material to the issue or point in question." 41 Am. Jur., supra, sec. 2, p. 4. State v. Dayton , 23 N.J.L. 49, 53 (Sup. Ct. 1850); State v. Kowalczyk , 4 N.J. Super. 47 (App. Div. 1949); reversed on other grounds, 3 N.J. 51 (1949); R.S. 2:157-1.
In the matter sub judice , that the offense charged is one committed in the course of a judicial proceeding cannot be denied. The defendant concedes that there might arise situations where a person could be charged with perjury based upon his opinions or beliefs. However, defendant argues that in such cases the existence or non-existence of belief in the conclusion reported becomes the basis of the ...