State v. Winne

Wachenfeld, J.

(dissenting). Nowhere in the State’s brief is the admission made, but on oral argument it was frankly conceded that the defendant was a gwasi-judicial officer and the performance of his duties required the use of wide discretion.

The inquiry, therefore, is whether or not in making a decision as to what, if anything, he was to do under the given circumstances, he could be indicted if his conduct was not corrupt or with evil intent.

Paralleling the presumption of innocence recognized everywhere without exception in the criminal law, there is also the natural presumption that an innocent man’s motives are good. So, until the contrary is charged or alleged, the act of a guasi-judicial officer involving a matter of discretion is presumed to be with good motive.

If the presumption is given its customary weight, in construing the indictment concerned we encounter the anomalous situation constituting that which is good as criminal. The result is incongruous.

Other prosecutors have been indicted and convicted of improper conduct in office but only after they were charged *183 with doing the things complained of “corruptly and with evil intent.” State v. Bolitho, 103 N. J. L. 246 (Sup. Ct. 1927), affirmed 104 N. J. L. 446 (E. & A. 1927); State v. Jefferson, 88 N. J. L. 447 (Sup. Ct. 1916), affirmed 90 N. J. L. 507 (E. & A. 1917).

The State openly acknowledged on argument that there was not a single authority to support its position in a cause involving the one held by the respondent and attributed the omission in the document in question to “bad draftsmanship,” which we are asked to repair by judicial treatment.

The respondent emphasizes the uniqueness of the indictment to be construed, avowing: “Eor the first time in the history of the United States and of England as well, a prosecutor is here charged with criminal liability for nonfeasance without allegation of corruption or bad motive.”

The asserted liability does not arise from statute but is founded in the common law.

Criminal law is not co-extensive with morality, and an act is not a crime merely because it is wrong. The judiciary has no inherent power to make an act criminal. That can only be accomplished by the Legislature, and, in the absence of a prohibition by law, no act is a crime however wrong it may seem. Human shortage, unaccompanied by corruption or bad faith, does not constitute criminality.

There are different classes of conduct. One is criminal, another is immoral, and a third is unethical or improper. The latter are molded and graded by public reaction and opinion, but no matter how scathing or justified the public expression may be, the conduct condemned does not become a crime until the Legislature has so classified it.

The definition ascribed by Webster to “corrupt” is: “changed from a state of uprightness, correctness, truth, etc., to a bad state,” while “evil” is defined as: “having or exhibiting bad moral qualities, morally corrupt, wicked.” Either definition describes what I am attempting to express, to wit, the difference between criminal and civil conduct.

In this category, before a man can be branded a felon and incarcerated,, he must have left the path of righteousness *184 and become “morally corrupt.” That transition legally is not presumed by what he does; it must be specifically alleged and charged, and either word would be sufficient in so doing.

“The constituents of a criminal offense at common law are an evil intention and an unlawful act.” State v. Labato, 7 N. J. 137 (1951). One of the constituents in the indictment here, according to our own decision, is absent, to wit, evil intention. We so held in the above ease.

The indictment contains no such allegation and is therefore, in my view, plainly defective.

Por these reas'ons, plus my inability to agree with the majority that a prosecutor, in relation to other law enforcement agencies, has a “primary responsibility for the enforcement of the criminal law,” I would sustain the court below.