On appeal from Superior Court, Law Division.
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 Burling, J. Wachenfeld, J., concurring in result.
This is a criminal action. The offense laid to the defendant Joseph Doto, also known as Joe Adonis, was false swearing, a violation of N.J.S. 2 A:131-4. The defendant appealed the judgment of conviction entered against him in the Superior Court, Law Division. The appeal was addressed to the Superior Court, Appellate Division, and prior to hearing there was certified on our own motion.
It was stipulated at the trial in the present case that the defendant Joseph Doto appeared before the Bergen County (New Jersey) grand jury, third stated session, September term 1951, on February 10, 1953, and was duly administered an oath by the foreman who was then duly authorized to administer that oath, and that the grand jury at that particular time was duly and lawfully constituted. It was established in the present action, without contradiction, that Doto was asked the following question in the course of his interrogation in the grand jury proceedings aforesaid:
"Mr. Doto, just so we can have the record complete, when and where were you born?"
"Passaic, New Jersey, November 5, 1901."
The State conceiving this testimony to be false, sought indictment of Doto. The same grand jury filed four indictments, two charging Doto with perjury and two charging him with false swearing. All four indictments were based upon the testimony hereinbefore quoted. One of the perjury indictments related to Doto's date of birth and the other to his place of birth. These were not moved for trial. Indictment No. 220, charging Doto with false swearing as to the date of his birth, and Indictment No. 221, charging him with false swearing as to the place of his birth, filed February 17, 1953, were moved for trial. It is the consolidated trial of these two false swearing indictments which is the source of
the present appeal. Doto waived a jury and a trial to the court ensued. At the close of the State's case Doto moved for judgment of acquittal on both indictments for failure of proof. R.R. 3:7-6. The motion was denied. Doto then rested his case without introducing any evidence and repeated his motions for judgment of acquittal on both indictments. R.R. 3:7-6, supra. The trial court denied the motions. The trial court subsequently heard closing arguments of counsel and took a short recess to deliberate. Thereafter the trial court found Doto not guilty of false swearing as to the date of his birth, but found him guilty of false swearing as to the place of his birth. Upon these findings verdicts were entered, guilty as charged on Indictment No. 221, and not guilty on Indictment No. 220. Sentence was imposed on February 2, 1954, on the conviction under Indictment No. 221, and Doto appealed.
The questions involved on this appeal include whether (a) an indictment is valid under N.J.S. 2 A:131-4 (i.e., for false swearing) where it fails to contain explicit negation of the truth of the statements on which the indictment is based; (b) the defendant's motions for judgment of acquittal on indictment No. 221 should have been granted; (c) the trial court erred in its rulings on the admissibility of evidence; (d) the defendant received a fair trial; and (e) the evidence supports the judgment of conviction.
The first question involved is addressed to the sufficiency of the indictment. Doto contends that in Indictment No. 221 the alleged false statement is not adequately negatived by an averment of the true fact. If error in the format of the indictment exists as alleged by Doto, it is asserted for the first time on this appeal. The indictment sufficiently apprised him of the charge against him and was subject to amendment under R.R. 3:4-5, formerly Rule 2:4-13.
This is not a perjury action but is a prosecution for the statutory offense of false swearing under N.J.S. 2 A:131-4
et seq. The alleged error in the indictment consists of the purported failure of the State to sufficiently negative the truth of the statements Doto was alleged to have made under oath. The pertinent portion of Indictment No. 221 reads as follows:
"* * * and the said Joseph Doto, also known as Joe Adonis, being so sworn as aforesaid, did wilfully swear falsely in substance and effect that he was born in the City of Passaic, County of Passaic and State of New Jersey, which said statement the said Joseph Doto, also known as Joe Adonis, then and there well knew was false, contrary to the form of the statute in such case made and provided, against the peace of this State, the government and dignity of the same."
The theory of the defense in this case is that the crux of the issues is Doto's belief at the time he gave the alleged false testimony. In perjury cases, analogy to which for the purposes of this limited question concerning the sufficiency of the indictment seems permissible, the general rule seems to be that the indictment should expressly contradict the matter alleged to have been falsely sworn to by the defendant. 2 Wharton's Criminal Law, Ruppenthal (12 th ed. 1932), sec. 1566, pp. 1825-1826. Cf. Heintz v. Court of General Quarter Sessions of Peace of Union County, 45 N.J.L. 523, 525 (Sup. Ct. 1883); 2 Schlosser, Criminal Laws of New Jersey (rev. ed. 1953), sec. 1938, p. 952. Compare, however, State v. Voorhis, 52 N.J.L. 351, 357 (Sup. Ct. 1890).
Where the accused "has sworn only to his belief, it will be proper to aver either that the defendant did not believe what he swore, or that 'he well knew' to the contrary." 2 Wharton's Criminal Law, ante, sec. 1568, p. 1826. It is said that in this respect indictments for perjury are sufficient if they state that the testimony of the defendant was false. 41 Am. Jur., Perjury, sec. 33, p. 20. Cf. State of New Jersey v. Sullivan, 25 N.J. Super. 484, 492 (App. Div. 1953), certification denied 13 N.J. 289 (1953), certiorari denied 347 U.S. 903, 74 S. Ct. 428, 98 L. Ed. (1954). Assuming for the purposes of this appeal that formal negation of the alleged false statement in the indictment by expression
of the truth of the fact is required in indictments for perjury in this State, and applies as well to an indictment for false swearing, the principles above adverted to indicate that ...