Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Bigelow, J.A.D. Jayne, J.A.D. (concurring in reversal).
[27 NJSuper Page 488] The first count of the indictment alleges that Orecchio was Chief of County Detectives of Bergen County from March 1, 1947 to December 4, 1950. It sets forth what the pleader considered to be the duties of Orecchio as such officer, and further charges:
"5. That on or about the tenth day of December, 1947, and from thence continuously to and including the fourth day of December, 1950, and on divers other dates and times, in the Borough of Fort Lee, in the said County of Bergen, there were kept and maintained at premises known and designated as 2075 Lemoine Avenue, certain gaming and betting houses wherein gambling was conducted by means of dice games, so-called; and in the said Borough of Fort Lee gaming by means of instruments, engines, apparatus and devices having figures and numbers thereon, were used and employed and conducted; and in the said Borough of Fort Lee furniture and implements used for the playing of unlawful games were kept, stored and possessed, all in violation of the laws of this State, and all of which he, the said Michael Orecchio, public officer as aforesaid, then and there well knew.
6. That, nevertheless, the said Michael Orecchio, being such public officer aforesaid, and well knowing the premises aforesaid, * * * unlawfully and wilfully did neglect, fail and omit to use and exercise, and cause to be used and exercised, all proper, reasonable, effective and diligent means and all lawful means within his power as Chief of the County Detectives of the Bergen County Prosecutor's Office, for the detection, apprehension, arrest and conviction of a person or persons who kept and maintained the gaming house as aforesaid, wherein the practice of maintaining a resort to which persons might come for an illegal purpose, namely, for the purpose of playing at dice; and wherein the laws of this State concerning gambling were violated in the manner and form aforesaid, but, on the contrary, then and there unlawfully did suffer and permit gambling in the manner and form aforesaid."
The two other counts on which the defendant was convicted are to the same effect, but one of them names a gambling establishment known as Costa's Barn in the Borough of Lodi, and the other mentions premises known as 1010 Palisade Avenue in Fort Lee.
With regard to the expression "unlawfully and wilfully:" The word "unlawfully" negatives all legal cause of excuse. Bishop, Criminal Procedure (1913), § 503. "Wilful" is opposed to accidental or involuntary; it means intentional; what a man wills to do. State v. Clark , 29 N.J.L. 96 (Sup. Ct. 1860); State v. Scott , 104 N.J.L. 544 (E. & A. 1928). "'It is frequently understood * * * as signifying an evil intent without justifiable excuse.'" Potter v. U.S. , 155 U.S. 438, 15 S. Ct. 144, 147, 39 L. Ed. 214 (1894). In the indictment before us, the expression "unlawfully and wilfully" should be construed to mean
intentionally and without legal excuse. But these adverbs do not aid the indictment if the defendant was not under a legal duty to do the acts which he is charged with omitting. The statement in the indictment of Orecchio's duty is a mere conclusion of law, without effect when the sufficiency of the indictment is the subject of inquiry.
The office or position of county detective was created by the criminal procedure revision, L. 1898, c. 237, § 158, p. 921, R.S. 2:181-10, which authorized the prosecutor of the pleas to appoint suitable persons "to act as special officers for the detection, arrest, indictment and conviction of offenders against the law. The persons so appointed shall possess all the powers and rights and be subject to all the obligations of constables and police officers in any county of this state, in criminal matters only." R.S. 2:181-10. The same section empowered the prosecutor to designate one of such special officers as chief of county detectives, but it does not indicate in any way his duties or powers.
The Attorney-General advances the theory that the phrase "for the detection, arrest, indictment and conviction of offenders against the law" imposes certain express duties on the special officers or county detectives, as they are usually called, and on Orecchio as their chief. We think that view is erroneous. There can be no duty to perform an act or accomplish a result unless there is bestowed a corresponding power. These officers cannot control what matters the grand jury shall take up for action; they cannot testify before that body unless summoned; they cannot move an indictment for trial, decide whom the State shall summon as witnesses, or participate in the trial in any way. They have no special authority to make arrests and their power to detect criminals is limited by their native ability and by their training.
Ever since 1874, the prosecutors of the pleas have been under a statutory duty "to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws." Rev. 1877, p. 286; R.S. 2:182-5. The use of the same words in the statute authorizing the appointment of special officers, shows the legislative
intent that they should aid the prosecutor in the performance of his duty in these respects. An implied authority is given the prosecutor to make rules for the guidance of the county detectives, including the chief of the county detectives, to divide responsibility among them, and to allocate particular tasks to each. And undoubtedly the defendant and the other detectives were obligated to conform to the prosecutor's reasonable regulations and directions of the kind suggested. State v. Hageman , 13 N.J.L. 314 (Sup. Ct. 1833). But the indictment does not allege such action by the prosecutor, and does not charge Orecchio with disobedience to any regulation or order of the prosecutor.
The statutory authority and duties of the county detectives are stated in the sentence of R.S. 2:181-10 which reads:
"The persons so appointed shall possess all the powers and rights and be subject to all the obligations of constables and police officers in any county of this State, in criminal matters only."
There is no statute to which our attention is directed conferring powers or imposing obligations on constables or police officers which are relevant to the case before us. The common law duties of constables were stated in general terms, without reference to any nonfeasance, in Hartley v. Inhabitants of Granville , 216 Mass. 38, 102 N.E. 942, 943, 48 L.R.A.N.S. 392 (Mass. Sup. Jud. Ct. 1913):
"The general duties of such an officer are to be vigilant to preserve the peace, to prevent the commission of crime, and to arrest all offenders in his town who might be arrested without warrant, and to procure warrants in other instances of crime committed. The quaint description of his duties given in early definitions is 'to keep the king's peace.' To keep the peace in its broad sense means to quell riots and disturbances of every nature, to prevent the commission of crime, and to see that offenders in their several districts are arrested and prosecuted."
The duties of police officers and constables are discussed in 62 C.J.S., Municipal Corporations , § 575 and 80 C.J.S., Sheriffs and Constables , § 42(b).
"One of the fundamental duties of a police department, from chief of police to patrolman, is to be on the lookout for infractions of the law and to use due diligence in discovering and reporting them, and in a proper case arresting the perpetrator and lodging and prosecuting a proper complaint."
Reasonable discretion must be left to police officers and only when they exceed that discretion, do they depart from their duty. People v. Calpern , 259 N.Y. 279, 181 N.E. 572, 83 A.L.R. 785 (N.Y. Ct. App. 1932). We do not mean discretion whether or no the law should be enforced but discretion as to the steps to be taken toward that end. We have already noted that the statute does not indicate the powers or duties of the chief of county detectives. He is himself one of the detectives, enjoying the same authority and burdened with the same obligations as the others. In addition, we think it fair to imply from his title some degree of authority over his fellows. Indeed, the indictment avers that Orecchio, as chief, "had under his direction, management and control, detectives and investigators." With his added authority, there should also be inferred a broader discretion.
The indictment alleges that "there were kept and maintained at premises known and designated as 2075 Lemoine Avenue, certain gaming and betting houses wherein gambling was conducted by means of dice games, so-called; * * * all of which he, the said Michael Orecchio, public officer as aforesaid, then and there well knew." What was his duty in that situation?
He was obligated in good faith to take such lawful action as in his discretion seemed likely to be effective, in order to close the gambling houses and bring the criminals to justice. Good faith and reasonable diligence were required of him, but just what should he do? He might turn over his information to the Fort Lee police or to one of the county detectives, or he might report the situation to the prosecutor and ask for instructions. He might even try
to obtain evidence himself on which he could base a complaint. Doubtless there were many other courses of action open to him. He was under no duty to pursue them all, but only such as, in his honest judgment, he thought were suitable to the situation. But if intentionally (willfully) and without legal excuse (unlawfully) he refrained from ...