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State v. McCue

Decided: January 17, 1973.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES F. MCCUE AND JOSEPH VENTRIGLIA, DEFENDANTS-APPELLANTS



Lora, Allcorn and Seidman.

Per Curiam

Defendants appeal their convictions of false swearing, on jury verdicts.

The indictments arose out of testimony given by each of the defendants at a trial in the municipal court of Bernards Township on January 27, 1969. Defendant McCue had been charged with two motor vehicle offenses -- careless driving and failure to obey the direction of a police officer -- under N.J.S.A. 39:4-97 and 39:4-57, respectively, on October 5, 1968 at about 9:30 P.M.

At the trial in the municipal court defendant McCue testified, in substance, that at the time of the occurrence of the offenses he was physically present at the home of a friend, Kathy Loughlin, attending a party; that he arrived at the party in company with defendant Ventriglia at about 8:50 or 8:55 P.M. and remained until 9:45 or 9:50 P.M.; that while still at the party he loaned his car to Ventriglia so that the latter might "go out with his girl [Kathy Loughlin]"; that he gave Ventriglia the car keys at 9:15 or 9:20 P.M., and that Ventriglia returned at times variously estimated by McCue to be 9:35 P.M., 9:40 P.M. and 9:45 P.M. Although McCue also testified that he had told the police that he had not ben driving the car, at no time during the proceedings did he testify directly that he had not been driving the car.

Defendant Ventriglia testified at the municipal court trial to the effect that he had arrived at the party with McCue "somewhere around nine"; that he left the party with Kathy Loughlin at about 9:15 P.M. and drove to Bernardsville in

McCue's car, with Kathy Loughlin driving; that during their drive he observed a police officer signaling them to stop, and the girl "started to stop and then she kept going," and that thereafter they returned to the party, arriving at about 9:40 P.M. Kathy Loughlin did not testify.

At the conclusion of the trial the judge of the municipal court made the following findings and conclusions:

I think what we have here is an obvious inability on the part of the State to identify the defendant who has been charged with the offense. There is no doubt that the offense occurred, and I have no doubt that it occurred in this car. I think that the testimony is clear that Mr. McCue was not the operator of the vehicle at the time. I recognize that an officer thought that he recognized him while driving but under such circumstances, at night, at a high rate of speed, with high beams in his eyes, and I don't feel that the degree of proof necessary to overcome the presumption of innocence has been established by the State. Accordingly there will be a finding of not guilty.

A review of the evidence at the trial on the false swearing indictments plainly points to the guilt of each of the defendants. Notwithstanding, defendants contend on this appeal that since McCue was found to be not guilty on the trial of the motor vehicle charges, the State is barred from prosecuting either of them for false swearing, under the doctrine of collateral estoppel. They argue that, on the occasion of the municipal court trial, the issue was whether McCue was driving the automobile at the time and place charged; that such issue was determined in favor of McCue by the judge of the municipal court, and that inasmuch as the false swearing charges involve precisely the same issue, the municipal court determination is res judicata and forever dispositive of the issue between the State and the defendants.

This question has been considered in a number of jurisdictions. Most hold to the view that a defendant who gives false testimony at his trial on a criminal charge may be prosecuted for perjury or false swearing by reason of such testimony, despite the fact that conviction on the perjury charge "necessarily imports a contradiction of the verdict

of not guilty in the former trial." People v. Niles , 300 Ill. 458, 133 N.E. 252 (Sup. Ct. 1921). Much is to be said for the philosophy ...


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