State v. Weleck

Wacheneeld, J.

(dissenting). The majority opinion finds the trial court abused its discretion in dismissing the *378 indictments. The court below determined merely that the statute of limitations applied and, having so concluded, it could not do otherwise. The first inquiry, therefore, is whether the statute of limitations precluded the prosecution. Did the two-year period run from the date of the corrupt agreement and thus expire before the indictments were returned, or did it run from the date of the last demand, to wit, July 14, 1949, which is within the two-year period?

The State’s theory is based upon the assumption the crimes of extortion and official misconduct as charged in the indictments are continuing offenses and the statute runs from the last overt act.

The agreement of March 2, 1949 and the adoption of the ordinance March 30, 1949 occurred admittedly more than two years before the return of the indictments on June 26, 1951, leaving the only events upon which the State can maintain its case the alleged demands for payment of $500 of July 7 and July 14, after the passage of the ordinance.

A continuous offense must consist of conduct which, after it becomes a complete offense, continues as such and contains the same essential characteristics and has all the ingredients of the full offense throughout the period in which it is continuous. In such instances the statute runs from the moment the offense first comes into being, but since the complete offense is repeated, it continues as a wrong and, if committed wdthin the two-year period, may be prosecuted, notwithstanding that so much of criminal conduct as antedated the two-year period could not be punished. Typical of this classification are public nuisances and desertions.

In the instant case the charge set forth in the indictments was undertaking “corruptly to influence, exhort and advise the Mayor and Council of the said Borough of Hillsdale to enact a certain ordinance then pending.”

The only duty here involved was to render legal advice and services in the preparation of the ordinance. The passage and adoption of the ordinance by the municipality two years *379 before the return of the indictment cut off the obligation and any duty resting upon the defendant in reference to it.

There no longer was an “ordinance then pending” as cited in the indictment nor was there any further “duty” on the defendant’s part as to it in the month of July 1949.

The corrupt bargain had been made; and even assuming the defendant acted thereon, his wrongful conduct in improperly advising or influencing or attempting to influence the municipal body in its performance of a governmental function had been completed more than two years prior to the return of the indictments.

Fothing more remained for the defendant to do. He could not advise or influence the municipality to pass an ordinance ■already established in solemn form by the governing authorities.

Judicially we are not warranted in extending the statute of limitations. It is a legislative mandate the propriety and wisdom of which reside in the Legislature. Our obligation is to enforce it as adopted.

Having concluded the statute of limitations was applicable, in my view of the case no consideration need be given to the contention advanced but not passed upon below that the indictment fails to state a crime.

In this regard, however, I am not in accord with the reasoning or the conclusion of the majority but need not further express my thoughts because of my determination as to the applicability of the statute of limitations.

Justice Oliphant authorizes me to say he is in accord with these views.

I would affirm the judgment below.

Heher, J., concurring in result.

For reversal — Chief Justice Vanderbilt and Justices Heher, Burling, Jacobs and Brennan — 5.

For affirmance — Justices Oltphant and Wacheneeld — 2.