Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant, a captain of detectives in the West New York police department, was convicted of misconduct in office and he appeals.
The indictment was in two counts. Defendant had moved before trial to dismiss both counts "on the ground that the indictment does not allege a crime." The trial court denied the motion as to the first count but granted it as to the second, not on the ground that it did not state a crime but because it was "repetitious" of the first count and "surplusage." The State appealed the dismissal of the second count, but the defendant did not cross-appeal the refusal to dismiss the first count. We reversed the dismissal of the second count, in State v. Gleitsmann , 54 N.J. Super. 355 (App. Div. 1959). At the trial, at the end of the State's
case the State itself moved to dismiss the second count as "duplicitous and repetitious," contrary to the position it had previously taken (see 54 N.J. Super. , at pages 360-361) and the motion was granted.
Defendant's first argument in the present appeal is that the first count of the indictment, upon which he was convicted, "should have been dismissed as it is palpably defective in that it fails to state facts sufficient to constitute a crime * * *." The indictment was quoted at length in State v. Gleitsmann, supra , at pages 357-358, so there is no need to repeat it here.
In the former appeal we pointed out (at page 361) that defendant "supports the action of the trial court permitting the first count to remain * * *." The State now contends that since defendant thus conceded the sufficiency of the first count, and its validity was necessarily approved by this court in the previous case, defendant may not now attack it. We find it unnecessary to express any opinion upon whether defendant has lost his right to attack the first count, because we find it to be sufficient in law. State v. Cohen , 32 N.J. 1 (1960); State v. Williamson , 54 N.J. Super. 170 (App. Div. 1959), affirmed 31 N.J. 16 (1959); State v. Kollarik , 22 N.J. 558 (1956); State v. Winne , 12 N.J. 152 (1953); State v. Weleck , 10 N.J. 355 (1952); cf. Ward v. Keenan , 3 N.J. 298 (1949).
The only argument in support of the attack upon the indictment that may not be fully answered by the cases cited above is that the use of a municipal telephone and police car for "personal and private affairs" by a police officer is not, standing alone, criminal. Defendant contends that (1) improper or immoral acts of a public officer, not made "a criminal offense by specific legislative enactment," do not constitute misconduct in office, and (2) even if we should hold they may, the "facts which characterize the acts and render them criminal" must be specifically alleged in the indictment, and since no such facts are set forth in the first count, that count did not charge a crime.
As we read defendant's brief he does not contest the existence of the duty of a public official to refrain from using public property for private purposes but urges that "[t]he precise nature of this public duty is not delineated in the indictment and can not be determined by reference to any reported statute or case law." The standard, says defendant, is therefore only a moral one, and, as such it "violates the principle of due process of law requiring reasonable certainty of description in fixing a standard for exacting obedience from a person in advance of criminal prosecution. The administration of criminal justice can not rest on shifting, vague, and indeterminate standards subject only to the whims of those charged with the duties of prosecution and dependent on the varying impressions of the members of a court." Defendant quotes from Justice Wachenfeld's dissenting opinion in State v. Winne, supra , that "[c]riminal law is not co-extensive with morality." 12 N.J. , at page 183. We may add that we are mindful of Chief Justice Weintraub's warning against the creation of "a tyranny of vagueness" by prosecutions predicated upon duties which arise from moral principles. State v. Cohen, supra.
Granting the correctness in principle of these general statements, we find they have no application here. The courts have prevented the common-law crime of misconduct in office from becoming a means for oppressive prosecutions premised upon vague moral principles by making willfulness an element of the crime. Willfulness, a term which may have different meanings in different contexts, means in the context of malfeasance arising out of breach of a duty of public concern "an evil purpose or mental culpability," a concept which is often labelled "criminal intent," "guilty knowledge," " means rea ," "bad purpose" or "corruption." State v. Williamson, supra , 54 N.J. Super. , at pages 182-185; Morissette v. United States , 342 U.S. 246, 252, 72 S. Ct. 240, 96 L. Ed. 288, 295 (1952); Screws v. United States , 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed.
1495 (1945); cf. People v. Harby , 51 Cal. App. 2 d 759, 125 P. 2 d 874 (D. Ct. App. 1942). As this court said in Williamson, supra , 54 N.J. Super. , at page 185, "[t]he defendant's conduct is described [in the indictment] * * * as having been done 'unlawfully and willfully,' which imports bad faith. State v. Winne, supra (12 N.J. , at page 175). This is sufficient."
In State v. Kollarik, supra , the indictment alleged that Kollarik, a councilman charged with the public duty "to refrain from using public employees for his own private work at public expense * * * nevertheless * * * unlawfully and willfully did fail, omit and neglect the public duty of refraining from using public employees for his own private work at the public expense; contrary to the provisions of N.J.S. 2 A:85-1 * * *." Upon evidence that Kollarik had a city employee paint screens and windows of his house, the court charged the jury
"* * * Certain officers have certain duties that just arise out of the nature of that office and the Courts may take judicial notice of such duties * * * by judicial notice I charge you that as Councilman of the City of Garfield he was under a duty not to use City employees at public expense, while they are on the City pay roll and being paid by the City, to do any private work for him on his own house * * *"
Kollarik was convicted of misconduct in office, and the conviction was affirmed. We see no difference in ...