State v. Kowalczyk , 3 N.J. 51 ( 1949 )

I am in accord with so much of the majority opinion which holds that the recantation of a witness after he willfully swore falsely will not exonerate him from the offense committed, but I cannot vote for a reversal because the indictment, in my opinion, is fatally defective and will not sustain a conviction. The majority opinion recites:

"The indictment contained two counts, both of which charged willful false swearing before a Camden County grand jury; the first preliminarily charged Kowal with willfully and falsely swearing that he did not know one Benjamin Anyzcek and could not identify a photograph of him and with willfully and falsely swearing that he did know him and could identify a photograph of him * * *; the second followed the same format and charged Kowal with willful false swearing in that he first testified that he did not, and later testified that he did, know the business in which Anyczek was engaged."

Since one or the other of these statements in each count had to be true, both statements could not be false as specifically alleged in the indictment. Obviously it is impossible for both statements to be false as one is the antithesis of the other and one had to be true in order to make the other false. I cannot, therefore, subscribe to the conclusion of the majority that this is merely an "irregularity," having no effect upon the indictment.

The indictment is supposed to fairly apprise the defendant of the charge made against him, State v. Gibbs, 134 N.J.L. 366 (Sup. Ct. 1946), and where, as here, it charges an impossible state of facts not susceptible of proof under any circumstances, in my opinion it is fatally defective and cannot be the basis of a judgment of guilt.

The indictment was not drawn according to the False Swearing Act, R.S. 2:157-4, 5. There it is provided that where contrary statements under oath are made, "it shall not be necessary to allege in an indictment or allegation which statement is false but it shall be sufficient to set forth the contradictory statements and allege in the alternative that one or the other is false."

The indictment sub judice specifically charges each statement as being false and does not, therefore, come within the purview of the statute. What the indictment charged, the State was obligated to prove, which it did not and could not do under the circumstances in this case.

The fact that each count of the indictment concludes with statutory language does not have the effect of curing prior error made therein. As a matter of fact, these concluding allegations contradicting previous statements contained in the indictment make "confusion worse confounded."

Because the indictment, in my opinion, is a nullity, I am to affirm the result reached by the Appellate Division but for the reasons herein stated. Mr. Justice Oliphant authorizes me to say he is in accord with this dissenting opinion.

For reversal — Chief Justice VANDERBILT, and Justices CASE, HEHER, BURLING and ACKERSON — 5.

For affirmance — OLIPHANT and WACHENFELD — 2.