HARBOR TANK STORAGE CO., INC. v. LoMuscio

45 N.J. 539 (1965)

214 A.2d 1

HARBOR TANK STORAGE CO., INC., DEBTOR BY JOSEPH M. NOLAN, TRUSTEE, ETC., PLAINTIFF-APPELLANT, v. JOSEPH LoMUSCIO, DEFENDANT, AND ANTHONY DeANGELIS, DEFENDANT-RESPONDENT.

The Supreme Court of New Jersey.

Argued September 29, 1965.

Decided October 25, 1965.

Mr. Jerome M. Lynes argued the cause for appellant (Mr. Joseph M. Nolan, attorney).

Mr. Frederic C. Ritger, Jr., argued the cause for respondent (Mr. Walter D. Van Riper, of counsel; (Messrs. Van Riper & Belmont, attorneys).

The opinion of the court was delivered

PER CURIAM.

DeAngelis was convicted of contempt of court and sentenced to imprisonment for four months. The Appellate Division reversed the conviction, 85 N.J. Super. 92 (1964), and we granted the prosecutor's petition for certification. 44 N.J. 401 (1965).

*540 The conviction rested upon a finding that defendant swore falsely in his testimony before the trial court. The Appellate Division found that falsity was not shown incontrovertibly and hence the contempt power could not be invoked. We agree with the Appellate Division's appraisal and also that that appraisal required a reversal of the conviction. We accordingly need not explore the more basic question whether perjury or false swearing which does not block a judicial inquiry is ever punishable other than in the regular course of criminal procedure, that is, upon indictment and trial by jury.

The judgment of the Appellate Division is affirmed.

For affirmance Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO 6.

For reversal None.