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State v. Marchese

Decided: December 7, 1953.


On appeal from the Superior Court, Law Division, certified by this court on its own motion.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.


The defendant, a former lieutenant and later a captain in the Lodi police force, was convicted in the Law Division of the Superior Court on two indictments charging him with malfeasance in office in failing to use "all proper, reasonable and effective means and all lawful means within his power and diligence for the detection, apprehension, arrest and conviction" of persons conducting gambling activities. The first indictment was concerned with activities between November 30, 1949 and May 1, 1950, at 172 North Main Street, while the second indictment dealt with activities at 244 Harrison Avenue, from January 1, 1948 to June 1, 1950. The defendant appealed from the judgment of conviction and we certified the appeal on our own motion while it was still pending in the Appellate Division of the Superior Court.

The defendant urges several grounds of reversal:

1. The defendant attacks both indictments as "invalid for failure to allege crimes against the state, and for ambiguity." He claims that no corrupt purpose or evil design is alleged or proved, the indictment merely stating that the defendant "wilfully, continuously, unlawfully and by design" failed to perform his duty. This precise contention was answered at length in State v. Winne, 12 N.J. 152 (1953); the language of the indictments is sufficient.

The defendant further contends that in charging him with the duty of "detection, apprehension, arrest and conviction" the indictments burden him with the task of obtaining a conviction, which is part of the duty of the county prosecutor and the grand jury. Although a police officer does not himself present the evidence to the grand jury, everything he does in the way of detecting crime, signing complaints, making arrests, gathering evidence and the like, is

with a view to obtaining the conviction of the guilty party. The indictments here do not place upon the defendant the burden of obtaining convictions. The essence of the charge is nonfeasance in office. The defendant did nothing and in fact admits that he did nothing. His only defense is a lack of knowledge of the crimes. At the worst the word "conviction" in the indictments is mere surplusage.

Nor is the charge of the duty to use "proper, reasonable, and effective means" ambiguous, as the defendant contends; see State v. Donovan, 132 N.J.L. 319 (Sup. Ct. 1945); State v. McFeeley, 136 N.J.L. 102 (Sup. Ct. 1947); and State v. Winne, supra.

2. The defendant claims that the first count of the second indictment returned on September 16, 1952 is barred by the statute of limitations and that therefore the trial court erred in denying his motion to dismiss this count. The count charges that "on or about September 1, 1947, to and including May 1, 1950" the defendant was a police lieutenant and that as such he failed to investigate and arrest those who were to his knowledge breaking the law between January 1, 1948 and June 1, 1950, at 244 Harrison Avenue, Lodi. Prior to the trial the defendant moved to dismiss the indictment, because on its face it appeared to be barred by the statute of limitations in that it was returned on September 16, 1952, more than two years after the last date on which it was alleged in this count of the indictment that the defendant was a public official.

At the beginning of the trial, however, it was stipulated in open court that the defendant was still a police officer of the Borough of Lodi, although under suspension since June 21, 1951. This stipulation would, of course, serve to remove any possible defect in the indictment through the mistaken use of May 1, 1950, as the terminal date of his public employment. Although good practice would dictate that the State move to amend the indictment to conform to the stipulation, its failure to do so is not fatal. The parties proceeded to trial under the stipulation and the defendant never renewed his motion for dismissal of the indictment on

this ground. Whatever defect existed in the indictment was cured by the stipulation. Under R.R. 1:5-1(b) (formerly ...

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