For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- Justice Sullivan. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned. Sullivan, J. (dissenting). Hughes, C.J. concurring in the result.
This appeal presents important issues relative to criminal intent and to the meaning of the statute dealing with extortion by a public officer, N.J.S.A. 2A:105-1. Under what circumstances does the acceptance by a municipal building inspector of a cash "Christmas gift" from a builder constitute a violation of the statute?
Defendant was indicted on two counts: (1) misconduct in office (N.J.S.A. 2A:85-1); and (2) an unlawful taking of money, contrary to the statute cited above. At the trial, before a jury, the first count was dismissed at the end of the State's case. There was a conviction on the second count. On appeal to the Appellate Division, the judgment was affirmed by a divided court, and the case is here as a matter of right. R. 2:2-1(a)(2). There were separate opinions by the majority judges, and by the dissenting judge. The crux of the differences among the judges related to the adequacy of the charge to the jury as to requisites for a culpable state of mind of the defendant.
N.J.S.A. 2A:105-1 reads as follows:
Any judge, magistrate or public officer who, by color of his office, receives or takes any fee or reward not allowed by law for performing his duties, is guilty of a misdemeanor.
Defendant was appointed as the sole building inspector for Marlboro Township on or about January 5, 1970. He was
charged with enforcing the building code throughout the township. His duties included the inspection of building plans, issuance of building permits, on-site inspection of buildings under construction for code compliance, and issuance of certificates of occupancy.
During the calendar year 1970 defendant had occasion to devote as much as 65 to 70 percent of his time inspecting a large development called Whittier Oaks which was being built in Marlboro by the U.S. Home and Development Corporation. Because the site and building plans of that project had received township approval prior to his employment, defendant's activities relative thereto were apparently limited to on-site inspections and final inspections prior to issuing certificates of occupancy.
On or about the 24th day of December, 1970 defendant was given a sum of money in an envelope -- the amount is in dispute and was either $150 or $250. It was received on the project site from Philip Frank, vice-president of operations for U.S. Home and Development Corporation, who wished defendant a Merry Christmas, or words to that effect, and departed immediately. Defendant had not solicited the money.
Savoie testified he believed the money had been given him "because of the good service [he had] rendered to U.S. Homes". This "service" consisted of making inspections of U.S. Home's project as soon after the corporation called to indicate a dwelling's readiness, as his time and schedule would permit. The code allows a 48 hour period to inspect trench work, backfills, and framing, and up to 10 days to complete a certificate of occupancy inspection. Defendant testified that he acted quickly upon U.S. Home's requests for inspection and that this type of expedited service was routine as he conducted himself similarly with any other persons who had a home to inspect.
Defendant told an investigating detective that he did not feel it was wrong to take the money. He regarded it as a
Christmas gift given him in appreciation for the fact he did not hold the company up awaiting his inspections. There was no evidence of defendant having defaulted in any way in respect of his duty to make proper inspections of the builder's home-sites.
The trial record reflects the fact that at the same 1970 Christmas season the builder made gifts also to a number of other municipal officials.
At the close of testimony the defendant requested the following charges to the jury relative to "criminal intent":
"8. Criminal intent necessary to complete the crime charged against the accused must be proved by the prosecution beyond a reasonable doubt.
14. The word 'knowingly' as used in the indictment and in the statute [ sic ] means intentionally, and with an awareness and consciousness of what one is doing. The word 'wilfully' as used in the indictment and in the statute [ sic ] connotes an intentional violation of the law. Mere mistake or neglect is not sufficient to spell out these elements of the offense.
15. A defendant who actually does violate the law would not be guilty of the criminal offense alleged unless he is either conscious of the fact that what he is doing constitutes a violation of the law, or unless he totally disregards the law and pursues a course without making any reasonable effort to determine whether the plan he is following would constitute a violation of the law or not. Unless you find beyond a reasonable doubt that the defendant committed the unlawful acts which are charged wilfully and knowingly, there must be a verdict of not guilty." (emphasis added).
Defendant also requested the following charge as to "demand":
"22. Without a demand, either expressed or implied, on the part of a public official there can be no crime of extortion. If you find that the transfer of money to the defendant was unaccompanied by a demand, then you must acquit the defendant."
The trial court refused these requests and did not charge the jury at all as to intent. When defendant, on exception to the charge as delivered, argued that "the element of knowledge and mens rea, or either of them, are implicitly involved in this statute", the court responded: "I will not charge it".
The essence of the court's charge as to the elements of the offense, after quoting the statute, was:
"To sustain a violation of that statute there are four essential elements which the State must prove to your satisfaction beyond a reasonable doubt and those four elements are these:
Number one, that Mr. Savoie was a public officer.
Number two, that by color of his office he, three, took money, four, that was not due to him.
Four elements, a public officer who by color of his office took money that was not due to him.
Those are the four essential elements which the State must prove to your satisfaction beyond a reasonable doubt.
If the State proves those four elements to your satisfaction beyond a reasonable doubt, you would be entitled to convict Mr. Savoie."
The court told the jury it was "conceded" that three of the "elements" had been "fulfilled" -- that defendant was a public officer; he had received money; and the money was not due to him. The only element in dispute was whether he had received the money by color of his office. The court defined the latter requirement as meaning "that the money received by the officer was in connection with the performance of his official duties." The court added that "it makes no difference whether the handing of the money over, or the receipt of the money is called a gift or a tip or anything of that nature."
The defense excepted to the charge for refusal to charge the requests and on the additional ground that the peremptory instruction that the money was not due the defendant, coupled with the vague charge on "color of office", left open the inference that the defendant could not have innocently received the money "under any circumstances whatsoever"; and that the effect of the charge was to eliminate from consideration the possibility that
"he may have gotten the money in a capacity unrelated to the performance of his public position * * *. If this jury legitimately felt that what he got was a gift unrelated to his taking a fee or reward for the performance of his office, ...