Defendant was indicted for perjury allegedly occurring during his testimony in the trial of a civil cause. He moves for dismissal of the indictment. His sole substantial ground is that the allegedly false testimony was not "material," and therefore the charge of perjury will not lie.
Two things are clear. The first is that, to support a charge of perjury, as opposed to false swearing, the testimony not only must be knowingly false, but also must be material to the issues before the forum in which it was given. Sinclair v. United States , 279 U.S. 263, 49 S. Ct. 268, 73 L. Ed. 692 (1929); State v. Sullivan , 24 N.J. 18 (1957), cert. den. 355 U.S. 840, 78 S. Ct. 52, 2 L. Ed. 2d 51 (1957). The second is that the question of materiality is for the court as a matter of law, and not a question of fact for the jury. State v. Lupton , 102 N.J.L. 530 (Sup. Ct. 1926); Gordon v. State , 48 N.J.L. 611 (E. & A. 1886).
Two things are unclear, both for the reasons that New Jersey courts have not had recent occasion to address them. First is the propriety of pretrial determination of the motion to dismiss. Second is the meaning of "materiality" as a necessary element of the crime of perjury.
Pretrial disposition of the motion seems proper. The materiality of the disputed testimony involves its setting in the context of a civil cause already tried. Now available for this court's review are the pleadings and the full transcript
of the civil trial. There is nothing that would be presented at the perjury trial that would further inform this court on the issue of materiality, since the proofs on that issue would not normally emerge before the jury. The State has not objected to the motion as premature. No purpose would be served by putting the State and defendant to a criminal trial before considering a possibly dispositive issue that is now fully ripe for decision. It might be otherwise if the State claimed to have oral testimony to present at trial on an issue properly before the jury that also touched the issue of materiality. Cf. State v. Shipley , 10 N.J. Super. 245, 250 (App. Div. 1950).
Another matter needs facing. Some of the old cases say that the mere averment of materiality in the indictment is sufficient to defeat a motion to dismiss. See, e.g., State v. Voorhis 52 N.J.L. 351 (Sup. Ct. 1889); State v. Beard , 25 N.J.L. 384 (Sup. Ct. 1856). If materiality is an essential element of the offense of perjury, it is hard to see how mere assertion forecloses further inquiry. It could be so only if materiality were handled as a matter for factual determination by the jury or for legal decision on the basis of trial evidence. Perhaps the Voorhis and Beard courts so conceived the issue. To the extent they did so, they no longer accurately state the law. The issue is a legal one and ought to be considered before trial if, as here, it is ripe for decision.
The matter arises here in the setting of a civil action for damages for breach of contract. Toto Bros., Inc., an earth materials excavator, sought payment from Hess Brothers, Inc., a road builder, for earth materials sold and delivered pursuant to a Hess purchase order. The existence of a contract was not in issue; its proper interpretation was. The unit price of $2.15 a yard was not in question; the quantity actually delivered was hotly disputed.
Toto contended that its contractual duty was to deliver truckloads of 17 cubic yards each to the site where Hess was constructing a highway for the New Jersey Department of Transportation. Toto further argued that it delivered the
quantities it billed for; that there was no oral modification of the original agreement, and that it was unpaid by more than $100,000. Hess's position was that Toto continually delivered short loads; that, when confronted during the course of its nonconforming deliveries, Toto orally agreed to make an equitable adjustment for all of its shortages, and that it was fully paid for the materials it actually delivered.
Toto's principal witness to the original agreement and its performance was Anthony Toto, Jr. He testified that he delivered full loads as required; that Hess had people on the job receiving the deliveries without complaint; that he never agreed to make any adjustment to his ...