For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
This matter involves a motion for the return of moneys seized by police authorities.
Defendant Sherry was indicted for conspiracy to commit abortion and for the crime of abortion. Upon a plea of non vult to the conspiracy, she was sentenced to imprisonment. The abortion charge was dropped. She then moved in the criminal cause for an order directing the County to return to her the sum of $2,719.50 seized in a search of her apartment. The County resisted the claim as to $2,500, that being the amount the father of the pregnant girl allegedly paid defendant at the time of the abortion. The trial court ordered the entire sum to be paid to defendant and the Appellate Division affirmed, one judge dissenting. State v. Sherry, 86 N.J. Super. 296 (App. Div. 1965). The County's appeal comes to us as of right. R.R. 1:2-1(b).
Sherry's application was supported by an affidavit in which she said cryptically that the sum of $2,719.50 was seized on January 23, 1961 by the office of the prosecutor and "That she is the lawful owner and has the right to said fund." No other facts were alleged, and the grounds of the application, as stated in the brief in support of the motion, were (1) that the seizure was made under a warrant which was "improvidently" issued and (2) that there is no statutory authority for the forfeiture of the moneys.
The County objected to Sherry's effort to try this controversy by affidavit. The County was correct. Whether the claim is made within the criminal cause or by an independent action, factual disputes must be heard upon live testimony with opportunity for cross-examination. Further, the issues should be framed so that the litigants will know what claims to meet and the trial judge will more readily comprehend precisely what must be decided. Here, the specific basis for the trial court's decision is not clear. In the Appellate Division the question the judges found critical and upon which they divided was whether the County proved the moneys seized included the $2,500 paid for the abortion involved in the criminal charge. Yet counsel for Sherry had almost conceded that fact in the argument of the motion in the trial court, and the trial judge made no finding upon it.
For the reasons hereinafter stated, we think the decisive question is whether the moneys seized included moneys paid for this abortion. To the extent that they did, Sherry would not be entitled to recover. The cause must be remanded to the trial court for a plenary hearing upon that issue.
Sherry contends that there cannot be a "forfeiture" of property unless a statute so authorizes and adds, accurately, that no such statute covers the situation before us. She says too that a "forfeiture of estate" is precluded by N.J.S. 2A:152-2 which reads:
"No conviction or judgment for any offense against this state, shall make or work corruption of blood, disinherison of heirs, loss of dower, or forfeiture of estate. * * *"
We think neither proposition is involved.
As to the first, we are not concerned with whether property owned by Sherry was forfeited because of some illegal use to which she put it; the question rather is whether she can claim title ...