author: Dreier, J. D. C.,

text:
    ELLEN ESCHLE, AN INFANT BY HER G/A/L, KARL ESCHLE AND KARL ESCHLE AND MARGARET ESCHLE, INDIVIDUALLY, PLAINTIFFS, v. EASTERN FREIGHT WAYS, INC., JANET SHERWIN AND GREGORY P. SHERWIN, DEFENDANTS/THIRD PARTY PLAINTIFFS, v. RICHARD J. CARLSON AND TRANS-AMERICA INSURANCE COMPANY, THIRD PARTY DEFENDANTS.
    Superior Court of New Jersey Law Division
    April 19, 1974.

      Mr. Clifford J. Sheehan argued the motion for plaintiffs (Messrs. Hueston and Hueston, attorneys).

      Mr. Kenneth J. Grispin argued the motion for defendants and third-party plaintiffs Janet Sherwin and Gregory P. Sherwin (Messrs. Shear and Kraus, attorneys).

      Mr. Richard J. Sauerwein argued the motion for third-party defendant Richard J. Carlson.
   Dreier, J. D. C.,

Temporarily Assigned. Defendant Eiehard J. Carlson has moved for an order dismissing the amended complaint as to him on the ground that it fails to state a claim upon which relief may be granted. A companion motion requests severance of the claims if the first motion is denied. The case is one of novel impression in New Jersey and, for the reasons hereinafter stated, the motion for dismissal must be denied.

Plaintiff was a passenger in a vehicle which struck the rear of a tractor-trailer in Maryland. She instituted suit against the owner and operator of the car in which she was a passenger and against the owner and operator of the tractor-trailer. By third-party complaint the owner of the passenger car impleaded the liability insurer and defendant Carlson, the insurance agent or broker, alleging as to him both negligence and breach of contract, since the insurer claimed that its policy had lapsed and had been cancelled. Thereafter plaintiff amended her complaint asserting direct claims against the insurance company and defendant Carlson.

I

The first question in this case is whether an insurance agent or broker may be liable to an injured member of the public for the negligent failure of the agent or broker to procure requested insurance, or for the breach of a contract to procure such insurance.

In reality, both the negligence and contract claims turn on the same issue, viz., is there duty owed by the insurance agent to members of the public, which duty is breached by the failure to obtain requested coverage. Whether the breach was occasioned by negligence or constituted a failure to perform a contract must await trial.

In the contract terminology, the public can be seen as the third-party beneficiary of an agreement between the agent and the insured. There is no question that the applicant himself is a beneficiary of the contract, but the public policy of this State goes further. Our policy is to see that drivers are insured, not only for their own benefit (to protect their assets in the event of a liability claim), but also to provide a fund from which the damage claims of others may be satisfied. See Selected Risks Ins. Co. v. Zullo, 48 N. J. 362 (1966); Matits v. Nationwide Mutual Ins. Co., 33 N. J. 488, 495-496 (1960); Sneed v. Concord Ins. Co., 98 N. J. Super. 306, 321 (App. Div. 1967); Deblon v. Beaton, 103 N. J. Super., 345, 351 (Law Div. 1968). The public is a third-party beneficiary of such an agreement, whether the public’s interest is classified under the common law classifications of donee, creditor or incidental beneficiary.

Our modern statutes requiring insurance or providing for coverage by an Unsatisfied Claim and Judgment Fund recognize that the public expects a source of payment beyond the means of the individual tortfeasor. When the agent or broker contracts for the insured to procure insurance, it is to satisfy this public policy of the State, as well as the desires of the insured. The beneficiaries of the agreement are not merely the insured who will have obtained coverage, and the insurance company which will obtain the premium, but also a potential injured party who will have a fund from which he can receive payment. The contract is made for his benefit as surely as if the provision appeared therein. His right of action is confirmed by N. J. S. A. 2A:15~2, which states:

A person for whose benefit a contract is made, either simple or sealed, may sue thereon in any court and may use such contract as a matter of defense in an action against him although the consideration of the contract did not move from him.

In the negligence field, in order to render the defendant liable, there must be found a breach of a duty, which duty, if observed, would have averted the plaintiff’s injuries (financial in our ease). Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N. J. 382, 393 (1963). The definition of a legal duty, in the negligence sense, has been best expressed in Wytubeck v. Camden, 25 N. J. 450 (1958). Justice Heher there noted:

“Duty” is not an absolute conception; and the standard of conduct is not an absolute. Duty arises out of a relation between the particular parties that in right reason and essential .justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably foreseeable, Lokar v. Church of the Sacred Heart, 24 N. J. 549 (1957). In the field of negligence, duty signifies conformance “to the legal standard of reasonable conduct in the light of the apparent risk”; the essential question is whether “the plaintiff's interests are entitled to legal protection against the defendant’s conduct.” Prosser on Torts (2d ed.), section 30. Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct.
* * it ^ * tf. • *
“Duty” is not a rigid formalism according to the standards of a simpler society, immune to the equally compelling needs of the present order; duly must of necessity adjust to the changing social relations and exigencies and man’s relation to his fellows; and accordingly the standard of conduct is care commensurate with the reasonably foreseeable danger, such as would be reasonable in the light of the recognizable risk, for negligence is essentially “a matter of risk * * * that is to say of recognizable danger of injury”. Prosser, Ibid., section 30. [at 461-462]

To apply these standards to our caso, we must step back from the parties involved and see what are the foreseeable effects from an insurance agent’s or broker’s actions. In the same manner as in the earlier contract discussion, we can see the effect upon the public if the insurance is not procured; the potential lack of recompense to a potential injured party is a natural and foreseeable result of an agent’s or broker’s actions if he negligently fails to obtain proper coverage in accordance with his instructions.

The court has been able to discover only one case directly on point, Gothberg v. Nemerovski, 58 Ill. App. 2d 372, 208 N. E. 2d 12 (App. Ct. 1965), and the majority there held that a judgment creditor of a public liability policy applicant had a sufficient interest in the undertaking of a broker to procure coverage to bring suit directly against the broker. The Illinois court, as this one, was not' impressed with the differences between the negligence or contract theories. The essential finding was that the defendant broker unconditionally undertook to procure insurance on behhlf of the applicant. Either (1) his breach of such contract, with the plaintiff considered a third-party beneficiary, or (2) his negligence in performing the contract, with the law implying a duty not only to the potential insured and insurance company — could be a basis of liability. With respect to the third-party beneficiary theory, the court in Gothberg stated:

In substance, defendant contends that the plaintiffs cannot recover under the third party beneficiary doctrine because the contract was not made fpr their direct benefit, and, if anything, they are only incidental beneficiaries [citing defendant’s arguments as to Illinois law].
Because of the peculiar significance of automobile liability insurance as well as the provisions of the policy contemplated by the parties and eventually issued, we do not agree with defendant’s theory. We believe that these plaintiffs can sue defendant directly. The plaintiffs can be considered third party beneficiaries of the contract to procure insurance entered into between Jackson and defendant, that is, they had a sufficient interest in such a contract to bring suit directly for its breach. In entering into this contract to procure insurance, it is a fair and reasonable inference that Jackson and his mother were contemplating possibly injury to unidentified third parties, and the insurance coverage was for the direct benefit of third parties who might be injured through Jackson’s negligence. Because Jackson, as the insured, was to be directly benefited by the insuranee coverage, does not preclude the fact that others were also intended to be directly benefited.
;r * * * *
The fact that plaintiffs’ identity may not have been known at the time the contract to procure insurance was made does not prevent them from assuming the status of third party beneficiaries, [citing eases] [208 N. E. 2d at 19-20]

Cf. Shea v. Jackson, 245 A. 2d 120 (D. C. Ct. App. 1968), as to a donee-beneficiary of life insurance; Johnson v. Holmes Tuttle Lincoln-Mercury, Inc. 160 Cal. App. 2d 290, 325 P. 2d 193 (D. Ct. App. 1958), as to an auto dealer’s failure to procure requested insurance; and James Stewart & Co. v. Law, 149 Tex. 392, 233 S. W. 2d 558 (1950), as to the obligation of a contractor to see that its subcontractors carried auto liability insurance. In this latter case, the court noted:

* * * If it be assumed that the motive of North American was only the selfish one to protect itself and not that of benefiting third parties, it does not follow that it did not intend to benefit third parties. Motive and intent are not synonymous. * * * The intent of the requirement that the contractor should see that all subcontractors carry automobile liability insurance was necessarily to provide a method by which claims of liability of the type insured against could be paid by insurers. Respondents’ claim is of that type. * * * It follows that, in our view, respondents were entitled to maintain this suit on the contract. * * * [233 S. W. 2d at 561-562]

So in our case. The intent of the alleged agreement with defendant Carlson was that liability claims of injured parties would have a source of payment. This, the very purpose of the coverage, must be deemed to have been within the contemplation of the parties.

In the Gothberg case plaintiffs were already judgment creditors, and it may be argued that plaintiff in our case, possessing an inchoate claim, should not be accorded the same benefits. Such an argument ignores the provisions of R. 4:27-2 which reads:

Except as provided by N. J. S. 2A:50-2 [bond secured by mortgage], if a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, then the 2 claims may be joined in a single action, but the court shall grant relief therein only in accordance with the relative substantive rights of the parties * * *.

In- the trial of the cause it should be no problem for the court to insure that defendant insurance agent will not be liable unless it is first shown that the claim has been proven against the applicant and also that the policy obtained did not afford the requested coverage.

This case does little more than synthesize two established rules in New Jersey law. Eirst, that an insurance agent is liable to the potential insured for the failure to obtain such coverage, Rider v. Lynch, 42 N. J. 465 (1964), and second, that an injured party acquires an interest in an insurance policy which may be available to cover the accident. In re Gardinier, 40 N. J. 261, 265 (1963); Deblon v. Beaton, supra, 103 N. J. Super, at 345-351. If the agent stands in the shoes of the company which would have issued the policy (had he not been negligent or breached his contract), there is no reason to deny the direct action against him, combining these two lines of cases. To hold to the contrary would be to insulate the agent from the consequences of his acts, and leave the public without adequate protection. See Sneed v. Concord Ins. Co., supra, 98 N. J. Super, at 321.

Eor the reasons stated, defendant’s motion to dismiss the amended complaint is denied.

II

Defendant has made a second motion to sever the issues of liability of the agent from the issue of liability for the accident. Of necessity these issues must be severed. If the same jury were to hear both issues, and determine the issue coverage or agent’s negligence at the same time as the principal liability question, the finding of liability well could be colored by the presence or absence of insurance. In addition, generally an injured party has no right of direct action against an insurer of the tortfeasor prior to recovery of judgment. Manukas v. American Ins. Co., 98 N. J. Super. 522 (App. Div. 1968). But even this latter ease notes that:

Plaintiff could have included a declaratory judgment action against American [the insurer] in the action against the church [the insured], or instituted a separate declaratory judgment action joining the church as a party, but it cannot maintain the present action [for damages against the insurance company alone] * *' ®. [at 525]

What plaintiff in our case has attempted to do is precisely what the court suggested in the Manukas case, i. e., to join the two claims in one action. See also R. 4:27-2. What is requested here is the severance of the claims for the purpose of trial only, so that the jury will not be prejudiced. This motion will be granted, and this court understands that all parties have consented to this portion of the Court’s order.


source: Caselaw Access Project

author: Devine, J. S. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF, v. LEO MEISLER AND ESTHER B. MEISLER, DEFENDANTS, AND ROGER WILCO, INC., DEFENDANT.
    Superior Court of New Jersey Law Division
    February 5, 1974.

      Mr. Remo Croce for plaintiff State of New Jersey (Mr. George Kugler, Attorney General, attorney).

      Mr. John B. Mariano for the defendants Meisler (Messrs. Wallace, Douglas and Mariano, attorneys).
   Devine, J. S. C.

This is a condemnation action instituted by the State of New Jersey against Leo Meisler and Eoger Wilco, Inc. Procedurally, defendant has moved to dismiss the condemnation proceeding due to a failure to comply with N. J. 8. A. 20:3-6 or, in the alternative, to compel the State to produce the property appraisals currently in its possession. Plaintiff, by letter, notified defendant of its offer of $47,300. Plaintiff also advised defendant that said offer was calculated on a “cost” approach which breaks down as follows: $6,200, the value of all property in the taking area, and $41,100 in damages to the remaining property outside the taking area. The statute in question in this case is N. J.. 8. A. 20:3-6, which provides in relevant part:

* * * that no action to condemn shall be instituted unless the condemnor is unable to acquire such title or possession through bona fide negotiations with the prospective condemnee, which negotiations shall include an offer in writing by the condemnor to the prospective condemnee holding the title of record to the property being condemned, setting forth the property and interest therein to be acquired, the compensation offered to be paid and a reasonable disclosure of the manner in which the amount of such offered compensation has been calculated and such other matters as may be required by the rules. {Emphasis supplied]

The appropriate court rule alluded to in the above quote is R. 4:73-1, which provides that “The complaint shall include a statement showing the amount of compensation offered by the condemnor and a reasonable disclosure of the manner in Which the amount has been calculated.”

Defendant condemnee takes the position that in the instant case a “reasonable disclosure” as required by the statute includes the submission of plaintiff’s written appraisals on the property to defendant Meisler. It is the contention of the State that under the applicable statute and court rule a “reasonable disclosure” encompasses only the submission of the manner in which the calculations, leading to the appraisal, were made, and not the actual calculations. Thus, it appears that the sole issue for determination by this court is an interpretation of the “reasonable disclosure” provision of N. J. S. A. 20:3-6.

Any interpretation of a statute must begin with an examination of its precise wording. N. J. S. A. 20:3-6 provides for a “reasonable disclosure of the manner in which the amount of such offered compensation had been calculated.” It must be noted that the Legislature provided only that the manner of the calculation be disclosed and not the calculation itself. Defendant’s position that the written appraisals must be disclosed is a departure from the precise statutory language. In support of this expanded reading of the statute the defendant cites the Report of Eminent Domain Revision Committee, written in connection with the passage of this legislation. A relevant portion of that report is as follows:

2. Negotiations for Acquisition. To foster amicable adjustments and thereby reduce litigation, the statute shall require that before proceedings are instituted, the condemning body shall conduct bona fide negotiations with the owners, through fair offers of compensation, including a reasonable disclosure of the manner of arriving at the offer, [at 7]

The above quotation indicates that the philosophy of the committee in proposing this statute was to encourage settlements in condemnations proceedings. However, this court fails to find any reason why this philosoph}'' should be implemented by an expansion of the statutory language to include the production of written appraisals, when the Legislature could have, but failed to, specifically provide the condemnee with this discovery tool.

It is the opinion of this court that the reasonable disclosure requirement of N. J. S. A. 20:3-6 does not require the production of written appraisals of the property to be condemned. This recognizes the intent of the Legislature to foster amicable adjustments and, at the same time, recognizes that the production of the appraisals before the hearing would encourage debate as to their validity and unduly prolong the litigation. The parties should, of course, negotiate in good faith: that is mandated by the statute. But disputes as to the accuracy of an appraiser’s report should await the hearing before the commissioners.

The court rules supplement the statutory procedures for condemnation outlined by the Eminent Domain Act, N. J. S. A. 20:3-1 et seq. However, these rules also provide no authority for defendant’s position that they are entitled to view the written appraisals. The text of R. 4:73-l merely iterates the language of the statute with respect to a “reasonable disclosure of the manner in which the amount was calculated.” The commentator’s notes to that rule state:

* * * The manner of calculation is a rather vague standard, but should be construed as requiring, at least, a breakdown between land and improvements, if any; any allocation made for damages to the remainder if less than an entire parcel is taken; and a specification of the appraisal method or methods, i. e. comparable sales, reproduction less depreciation, or capitalization of income. [Rules Governing the Courts of the State of New Jersey. (Gann Law Books 1973 ed. at 731)]

In the present ease the State had provided defendant with a breakdown and the method of calculation used in making the offer. It is my opinion that the State has fully complied with the court rules as interpreted by the commentator’s notes.

In addition, the Eminent Domain Act is silent as to the exchange of appraisals, and the court rules provide that ordinary discovery is not applicable; taken together, these factors indicate that neither the Legislature, nor the Supreme Court in the promulgation of the court rules, intended that appraisals be available before trial. This conclusion is further buttressed by the fact that in one area, the exchange of comparables under N. J. S. A. 20:3-12(d), the Legislature provided for their exchange prior to the hearing. Such an omission by the Legislature in the area of appraisals must be taken as intentional.

Finally, defendant argues that the withholding of the written appraisals violates the intent of the Legislature to have “each party lay their cards on the table.” It is the opinion of this court that the philosophy of the Eminent Domain Act is to encourage both parties to engage in bona fide negotiations and thereby reduce litigation. However, in view of the precise wording of the statute and the court rules, it is my feeling that plaintiff’s failure to provide written appraisals violates neither the statute, the court rules, nor the intent of the Legislature. Accordingly, defendant’s motion to dismiss the complaint or in the alternative to compel production of the appraisals is denied.


author: Breslin, R. W., J. S. C.,

text:
    IN THE MATTER OF THE APPLICATION OF BONNIE LEE DANIELS LAWRENCE, ALSO KNOWN AS BONNIE LEE DANIELS, FOR LEAVE TO ASSUME THE NAME OF BONNIE LEE DANIELS.
    Bergen County Court
    May 2, 1974.

      Ms. Bonnie Lee Daniels, pro se.

   Breslin, R. W., J. S. C.,

Temporarily Assigned. Plaintiff is a law student who is married to one Adam Lawrence. Plaintiff and her husband are still legally married. The complaint recites that plaintiff has never been convicted of a crime, no suits are now pending against her, and no judgments have been recovered against her in insolvency or bankruptcy proceedings. The reasons plaintiff gives for wishing to change her name are the desire to retain an identity separate and distinct from that of her husband and the professional and social implications attendant upon such a change. Plaintiff has submitted proof of publication of her intent to change her name and has in all other respects complied with the procedures set forth in R. 4:72 — 1 et seq.

N. J. S. A. 2A:52-1 provides that:

Any person may institute an action in the county court of the county of which he is a resident or in the superior court, for authority to assume another name.

There are very few reported cases dealing with name changes in this State, but a few general principles are recognized. The most recent ease on the subject is In re M, 91 Y. J. Super. 296 (Law Div. 1966). Plaintiff in that case was an 11-month-old child born out of wedlock. He had been given the surname of his mother and wished to adopt the surname of his putative father as his legal name. Both the child’s mother and putative father expressed a desire to make this change, hut the father’s spouse opposed. The court stated the law as follows:

While there is a paucity of precedent on this question, it is apparent that the court has wide discretion in granting or refusing an application for a change of name. Circumstances of special significance that would militate against the granting of such an application would be an unworthy motive, the possibility of fraud on the public, or the choice of a name that is bizarre, unduly, lengthy, ridiculous, or offensive to common decency and good taste, [at 298]

The issue presented to the court is whether a woman who is still legally married may be granted a change of name in a judicial proceeding in order to resume the use of her maiden name as her sole legal name. A thorough review of the case and statutory law of this State discloses no authority on this point, and as a result the court must look to other jurisdictions for guidance in this matter.

A reading of the case law of various jurisdictions reveals a variety of answers to the question before us. For example, in In re Hauptly, 294 N. E. 2d 833 (1973) the Court of Appeals of Indiana determined that the denial of such a petition as is presently before this court was a proper exercise of discretion by the trial court. The court in that case, after noting that plaintiff’s petition was to resume the use of her maiden name as her legal name although she was still legally married, found that plaintiff had abandoned her maiden name at the time of her marriage and had assumed the surname of her husband. The court then stated:

We are not here dealing with the right of a married woman to do business or be sued in a surname other than her husband’s. Without question a person, including a married female, may assume a different name by which he is known and transacts business, [at 834, 835]

The general rule applicable to a change of name is that a person may, in the absence of a fraudulent or improper motive, adopt any name by which he chooses to be known. In re M, supra; Sobel v. Sobel, 46 N. J. Super. 284 (Ch. Div. 1957); State v. Librizzi, 14 N. J. Misc. 904, 188 A. 511 (Sup. Ct. 1936); Bruguier v. Bruguier, 12 N. J. Super. 350 (Ch. Div. 1951). This common law procedure may be utilized without resort to any formal legal proceeding. Such statutory proceedings are generally regarded as providing an additional method for changing one’s name rather than abrogating the common law rule in this regard. See 65 C. J. S. Names § 11(2) at 32; 57 Am. Jur. 2d, Name § 11 at 282.

With respect to the scope of discretion vested in the court hearing the application for a statutory change of name, 65 G. J. S. Names § 11(2), reads as follows:

The determination of an application for a change of name, however, depends, in each case on its own particular facts, and a showing of actual fraud or of the actual invasion of the rights of another is not required in order for a court to be justified in denying a change of name. It has been held that names should not be changed for trivial, capricious, or vainglorious reasons, that a change of name will be refused if the court entertains a serious doubt as to the propriety of granting it. [at 28]

See also 57 Am. Jur., 2d, Name, §§ 11, 12; In re Ross, 8 Cal. 2d 608, 67 P. 2d 94, 110 A. L. R. 217 (Sup. Ct. 1937) ; In re Taminosian, 97 Neb. 514, 150 N. W. 824 (Sup. Ct. 1915).

The effect of a judicial proceeding for change of name upon a person’s common law right to adopt any name he may choose is noted in 57 Am. Jur. 2d, Name, § 16 as follows:

Statutes relating to changing one’s name sometimes provide that on and after the day specified in the order of the court for the change to take effect, the applicant must be known by the new name and no other. It has been said that such a statutory provision may well have the effect of barring a person who has acquired a name by judicial decree from acquiring another name without resorting to the courts, [at 285; emphasis supplied]

See also, Smith v. United States Gas. Co., 197 N. Y. 420, 90 N. E. 947 (Ct. App. 1910); Brayton v. Beall, 73 S. C. 308, 53 S. E. 641 (Sup. Ct. 1906); Application of Shipley, 26 Misc. 2d 204, 205 N. Y. S. 2d 581 (Sup. Ct. 1960); In re Burstein, 69 Misc. 41, 124 N. Y. S. 989 (Sup. Ct. 1910); 65 C. J. S. Name § 11(2) at 32. A similar statement is contained in N. J. S. A. 2A:52-2, which reads as follows:

Effect of judgment for change of name in general.
Such person, from and after the day specified therefor in the judgment in the action, shall be known by the name which, by the judgment, he is authorized to assume, and by no other.

It is thus apparent that if this court were to grant plaintiff’s petition she would henceforth be known as Bonnie Lee Daniels., She would he forever barred from using any other name, including her husband’s surname, for any purpose whatsoever without first instituting a judicial proceeding for a second change of name.

Plaintiff contends that in fact her surname has not been changed by marriage and that her maiden name is still her legal name. If this were indeed true there would be no need for plaintiff to have instituted the present proceeding, since she would be asking the court for a judgment changing her legal name from her purported name to that which is already her legal name.

There is some confusion as to what is the common law rule as to the change of a woman’s surname upon marriage. After careful examination of the cases and treatises cited by plaintiff and a thorough review of the law on the subject the court has determined that plaintiff’s proposition is not supported in law and is in fact based upon an erroneous interpretation of the common law.

The following quotation, taken from 57 Am. Jur. 2d, Name, § 9, sets forth the general common law rule and one instance where a different interpretation prevails:

It is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and assumes the husband's surname. Her correct first name, however, is her maiden Christian name, and not the Christian name of her husband. Legally, therefore, her name consists of her own Christian name and her husband’s surname. * * * In divergence from the common-law rule, it has been intimated that under Louisiana law a married woman keeps her maiden name in law and bears the name of her husband only as a matter of custom, [at 281]

The Louisiana ease mentioned above is Succession of Kneipp, 172 La. 411, 134 So. 376 (Sup. Ct. 1931). There the court, in discussing the weight to be given the fact that decedent’s marriage license was issued in her maiden name where it was alleged she had been previously widowed, stated:

The fact that the license was issued for the marriage to Kneipp in the maiden name of the testatrix is not at all strange, for, in law, she still retained her maiden name, and bore Rupp’s name, if married to him, as a matter of custom. [134 So. at 378]

This statement was not supported by any authority whatsoever. Even if precedent of some type had been relied upon, the court was stating the common law as applied in the State of Louisiana, which was derived from French law as opposed to the English origins of the common law of this and all the other states.

In a later Louisiana case, Wilty v. Jefferson Parish Democratic Exec. Comm., 245 La. 145, 157 So. 2d 718 (Sup. Ct. 1963), the court, after stating that there is no definite law or decision in Louisiana as to what is the legal name of a married woman, examined the problem and determined as follows:

We conclude that a married woman’s designation or appelation should be that of her Christian name and her husband’s surname. [157 So. 2d at 724]

A concurring opinion disagreed with the above proposition. In support of this the concurring judge relied upon Kneipp, supra, and a French treatise on civil law.

Another statement of what is a married woman’s legal name is Hound in 65 C. J. S., Names, § 3, as follows:

At marriage the wife takes the husband’s surname and the surname of the husband, so taken at marriage becomes her legal name. Her maiden surname is absolutely lost, and she ceases to be known thereby, [at 4, 5; emphasis supplied]

The above language is used in Chapman v. Phoenix National Bank, 85 N. Y. 437 (Ct. App. 1881), and the court there notes that this has been the English common law for several centuries. The rule in Chapman was cited with approval in Bacon v. Boston Elevated Railway, 256 Mass. 30, 152 N. E. 35 (Sup. Jud. Ct. 1926), wherein the court held that a married woman who had registered an automobile in her maiden name, although she had used her husband’s surname subsequent to their marriage, had done so improperly. Chapman was also cited in In re Kayaloff, 9 F. Supp. 176 (S. D. N. Y. 1934), which involved a professional woman who was applying for naturalization using her maiden name, which was also her professional name. The court in said case took notice of the fact that many business and professional women continue to use their maiden names after marriage for professional reasons, yet are known in private life by the surnames of their husbands. The court then stated:

It is my judgment that none of them has been damaged professionally by the fact that, upon marriage, she took the surname of her husband. I am not convinced that any loss will accrue to petitioner if she be denied a certificate in her maiden name, [at 176]

The Chapman rule is also cited with approval in Baumann v. Baumann, 250 N. Y. 382, 165 N. E. 819 (Ct. App. 1929), wherein the court refused to enjoin the second wife of Charles Baumann from using the name “Mrs. Charles Baumann,” even though her husband’s divorce from his first wife was invalid. The court reasoned that the first wife’s status as the one and only spouse of Mr. Baumann was secure, and though plaintiff had a legal right to use the name “Baumann,” that right was not exclusive.

A similar situation to Kneipp occurs in State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N. E. 2d 616 (App. Ct. 1961). In that case the court asserted that a woman adopts her husband’s surname only by custom and that, although the State of Ohio followed this custom, no law compelled it. As in the Kneipp case, the statement of the proposition referred to was made unsupported by any authority whatsoever other than a passing reference to Ohio Jurisprudence 2d. In Krupa plaintiff filed for election as a municipal court judge, using her maiden name. She had been well known in professional and social circles by that name for many years, both before and after her marriage. Prior to the marriage plaintiff and her prospective husband entered into an agreement whereby plaintiff was to retain and use her maiden name exclusively subsequent to the marriage, and the agreement was fully complied with by plaintiff. The court found that as a result of the aforesaid actions plaintiff could be identified by no name other than her maiden name and stated:

'Urns it appears she, made the use of her maiden surname after marriage agreeable to her husband, used such name after marriage openly and notoriously, with no deviation whatever, and oblained a public documentation of the same. By these actions, Blanche Krupansky has clearly demonstrated her intent and purpose to be identified and known by the name of Blanche Krupansky and by no other name. [177 N. E. 2d at 619]

The court then proceeded to uphold plaintiff’s right to appear on the ballot using her maiden name.

A similar antenuptual agreement was entered into by plaintiff and her husband in Stuart v. Howard Cty. Bd. of Supervisors of Elections, 266 Md. 440, 295 A. 2d 223 (Ct. App. 1972). Plaintiff there also consistently used her maiden name after marriage. The court held that by virtue of the antenuptual agreement and plaintiff’s consistent nonfraudulent use of her maiden name subsequent to her marriage, she did not undergo a change of name by marriage within the meaning of the Maryland statutes relating to voter registration and therefore would be permitted to register and vote using her maiden name. Similar factual situations, i. e., the continued exclusive use of her maiden name by a married woman subsequent to her marriage, were present in People ex rel. Rago v. Lipsky, 327 Ill. App. 63, 63 N. E. 2d 642 (App. Ct. 1945); Wilty v. Jefferson Parish Democratic Exec. Comm., supra; State ex rel. Bucher v. Brower, 21 Ohio Op. 208, 7 Ohio Supp. 51 (C. P. 1941), and Custer v. Bonadies, 30 Conn. Super. 385, 318 A. 2d 639 (Super. Ct. 1974). In Forbush v. Wallace, 341 F. Supp. 217 (M. D. Ala. N. D. 1971), the court does not state whether plaintiff had exclusively used her maiden name subsequent to her marriage and prior to her application for an Alabama driver’s license in her maiden name. The three-judge court upheld the Alabama Department of Public Safety in its denial of plaintiff’s application on the ground that the unwritten department regulation, which requires a woman to assume her husband’s surname upon marriage, has a rational basis and seeks to regulate an area in which the State has a legitimate interest. The court took notice of the considerable investment made by the State in its administrative machinery and, after weighing the costs and delays attendant upon a change in this machinery against the magnitude of plaintiff’s injury, concluded that plaintiff’s application must be denied. The court stated that the common law was that upon marriage the wife takes the name of her husband, and that this becomes her “legal name.” The court spoke further on the subject as follows:

Certainly the custom of the husband’s surname denominating the wedded couple is one of long standing. While its origin is obscure, it suffices for our purposes to recognize that it is a tradition extending back into the heritage of most western civilizations. It is a custom common to all 50 states in this union. Uniformity among the several states in this area is important, [at 222]

The court in Bucher, supra, determined that plaintiff was entitled to be listed on the ballot as a candidate for city commissioner using her maiden name since she had used this name exclusively since her marriage and was widely known in the community by her maiden name. The court quoted extensively from an article in the Yale Law Journal, entitled “Personal Names,” by G. S. Arnold, 15 Yale L. J. 227 (1906). The article discusses the history and development of surnames in England merely as an additional means of identifying persons who had the same Christian name, which was originally regarded as the all-important name. Surnames came into common use in the 14th Century in England, and by the time of Cromwell were required of all persons. Over the years the emphasis has changed and today the surname is regarded as the primary means of identifying a person. As to the development of the surname of a wife, Arnold noted:

Gradually the son came to take the surname of his father, and the wife, (when she took one), that of the husband, [at 2]

Other cases cited by plaintiff in support of her argument include Lane v. Duchac, 73 Wis. 646, 41 N. W. 962 (Sup. Ct. 1889), which noted that the mere fact that a married woman becomes a mortgagee using her baptismal name does not thereby render her a fictitious person and invalidate the mortgage. The case did not decide the question of what is a married woman’s legal name, but rather dealt with her common-law right to adopt any name she chooses for business purposes, as in the Haupily case, supra. Also cited are Rice v. State, 37 Tex. Cr. 36, 38 S. W. 801 (Ct. App. 1897), and State ex ret. Bucher v. Brower, supra. In Rice the court, in dealing with the contention that the State in a rape case had failed to prove that the victim was not the wife of defendant, as was required by statute, stated:

It may be contended that the use of another name than that borne by the defendant sufficiently negatives the idea that she was his wife. There is nothing in our statute requiring or compelling the wife to take or assume the name of her husband. While this is generally the case, yet the wife might retain her own name. She might be married to the defen'dant, and still be known by her maiden name, or some other name than his. “It is said, the husband being the head of a family, the wife and children adopt his family name — by custom, the wife is called by the husband’s name; but whether the marriage shall work any change of name at all is, after all, a mere question of choice, and either may take the other’s name, or they may join their names together.” [38 S. W. at 802]

The court in Bice relied on citations to the American and English Encyclopedia of Law and the cases of Converse v. Converse, 9 Rich. Eq. 535 (S. Carolina 1856); Fendall v. Goldsmid, 2 Prob. Div. 263 (1877), and In re Snook, 2 Hilt. 566 (N. Y. C. P. 1859).

19 American and English Encyclopedia of Law, Husband and Wife, § 5 at 813 states:

Ths husband being the head of the family, the wife and children generally adopt his name-by custom, the wife is called by the husband’s name. But whether marriage shall work any change of name at all is, after all, a mere question of choice, and either may take the other's name, or they may join their names together.

The Converse, Fendall and Snoolc cases are relied upon as authority. Converse involved the validity of the exercise of a power of appointment by plaintiff wife to transfer her property which was subject to the power to her husband. The parties had separated subsequent to the wife’s exercise of the power due to the husband’s alleged maltreatment of the wife. Plaintiff also sought to have her surname changed from that of defendant to that of her first husband. In denying the application of plaintiff for a change of name the court noted:

Nor can another proposition of the plaintiff be entertained, namely, to change her name from that of ‘Converse’ to that of ‘De Veaux,’ which is the name of her first husband. The court undoubtedly possesses the power to change the name of a party who may make such an application for such purpose. If in this mode the name of a husband was changed, that of the toife would also he changed, as a necessary consequence. But an application to change the name of a wife without the concurrence and consent of the husband is without a precedent. It seems to be wrong in principle. How do I know these parties may not become reconciled? [9 Rich. Eq. at 539, 540; emphasis supplied]

The above language clearly stands only for the proposition that a woman may file an application in a divorce action to shed the surname of her husband with his consent. The language used by the court goes no further than this, although the italicized sentence indicates a recognition by the court that the name of a married woman is inexorably lined to that of her husband.

Fendall v. Goldsmid, supra, involved the marriage, without proper publication of marriage banns, of two persons who had previously divorced each other. Petitioner Alice Golds-mid had had the banns published under that name, although ever since the dissolution of the prior marriage she had been known as Alice Eendall, her maiden name. In dismissing the petition the court stated that marriage confers a name upon a woman which becomes her actual name, and that she can only obtain another name by reputation.

The Snook case involved a man who wished to change his German surname to its English translation for business reasons and pecuniary benefits. The court denied the petition, stating that in its opinion no such benefits would inure and therefore the change could not be granted, although petitioner could continue to use his assumed name as the name by which he was known in the business community. The court in Snook discusses the history of surnames in some detail, dealing primarily with men’s surnames. The only references to the surname of a woman concern the publication of marriage banns. The case does not deal with the surname of a married woman. However, it is cited in Rich v. Mayer, 7 N. Y. S. 69 (N. Y. City Ct. 1889), as authority for the proposition that a woman may properly assume her maiden name after she has divorced her husband. The court in Rich states the law as follows:

At common law a person may lawfully change his name. He is bound by any contract into which he may enter in his adopted or reputed name, and by his recognized name he may sue or be sued. See cases cited in Anderson’s Dictionary, Tit. ‘Name.’ The plaintiff had procured a divorce from a bad husband and judiciously dropped his bad name and resumed that given by her parents. It was, in effect, the resumption of her original name by operation of law, rather than choice or fancy. It was certainly not a change made for sinister or ulterior motives, but one that is praiseworthy and commendable. The marriage relation gave her the name she bore during its continuance. Its dissolution restored her former rights, one of which was the liberty of bearing her family name, and this privilege she has seen fit to exercise, [at 70, 71]

The case of Cowley v. Cowley, [1901] A. C. 450 (H. L. 1901), involved the Earl of Cowley who complained that his commoner ex-wife was continuing to use the title “Countess of Cowley” although she was now married to a commoner. The court held that the Earl had suffered neither legal wrong nor damage. It was conceded that nothing in the ' divorce decree deprived the countess of either the title or the privileges which she had acquired as the wife of the earl. It also noted that commoners who become peeresses by marriage retain their titles after remarriage to commoners by courtesy and the usages of society, not as a matter of right. Cowley dealt with a woman’s right to continue the use of her married name, not her right to discard it. The case, along with Fendall v. Goldsmid, supra, is cited in 19 Halsbury’s Laws of England, Husband and Wife, § 1350 at 829, as supporting the proposition that a woman’s change of name by marriage is a change in fact only and not a change in law.

A careful reading of the above cases and articles leads this court to the inescapable conclusion that the reliance placed upon them by the court in Rice v. State, as quoted supra, for the proposition that a woman adopts her husband’s name upon marriage only as a matter of custom and not as a matter of law, is misplaced, and that therefore the statement of the law in Bice is erroneous.

A much-cited work on the question before this court is The Law of Married Women by Moss Turner-Samuels (1957). The author states (at 345) that the practice of a woman taking her husband’s surname upon marriage is a custom only and not compellable by law. The author cites no authority for this statement. He then remarks that a wife may continue to use her maiden, married, or any other name by which she wishes to be known. The context in which this statement is made leads the court to the conclusion that the author was referring to a person’s change of name by the common-law rather than the statutory method. The cases1 relied upon by the author in support of his contention are Cowley v. Cowley, supra; Davies v. Lowndes, 1 Bing. N. C. 597 (1835), and DuBoulay v. DuBoulay (1869) L. R. 2 P. C. 430. In Davies the decedent appointed William Lowndes his lawful heir, provided that no heir at law of decedent was found, and further provided that Lowndes change his surname to Selby, the surname of decedent. The main point of the case as far as change of name is concerned is that a person need not go through a formal proceeding to change his name, but may do so by what has been referred to as the common-law method, supra.

The DuBoulay case involved a woman who was holding herself and her child out to the community as the wife and child of plaintiff. The court refused to enjoin her from continuing to do so. The case stands for the proposition that a court will, under certain circumstances, refrain from stepping in to prohibit a woman from using the surname of another, oven though she is not related to him by blood or marriage. Neither of the above cases deals with the subject of the proper legal name of a married woman.

Turner-Samuels also mentions the case of Lady Hatton, the second wife of Sir Edward Coke, who refused to take her second husband’s name and in fact never did so. This situation was never before a court of law and cannot be cited as precedent. Even if it were to be relied upon it would fall into that class of cases wherein the wife never takes her husband’s surname but uses her prior name consistently and nonfrau dulently.

Thus it is apparent that the statements made by TurnerSamuels as to the true name of a married woman are also without foundation.

The remaining authorities cited by plaintiff are Priscilla Ruth MacDougall, “Married Women’s Common Law Right to Their Own Surnames,” Women’s Rights L. Rptr. (Fall-Winter 1972-73), and Kathleen A. Carlsson, “Surnames of Married Women and Legitimate Children,” 17 N. Y. L. F. 552 (1971). Both of these articles conclude that a woman has a common law right to retain the use of her maiden surname. However, in support of this conclusion both authors rely primarily on the eases discussed, supra,. Since the court has concluded that those cases do not in fact support the above proposition, plaintiff cannot rely on these articles as authority.

In all of the cases discussed in this opinion in which the wife was allowed to retain her maiden name, she had used the name exclusively, consistently and nonfraudulently in all her affairs, both before and after marriage. Plaintiff in the present case has offered no evidence to show that she has similarly conducted her affairs. In fact, plaintiff filed the petition itself, using her husband’s surname and giving her full maiden name as an alternative appellation. The law which plaintiff has relied upon as authority for her contention that she still legally retains her maiden name has been shown upon close examination and analysis not to be supportive of the proposition. While there is still no clear statement of what is a married woman’s legal name, it cannot be denied that the tradition of a woman adopting her husband’s surname upon marriage is deeply imbedded in the common law of both Great Britain and the United States, and is almost universally followed to this day.

The Legislature of this State reflects its awareness of this situation in N. J. S. A. 2A:34-21, wherein it provides:

The court, upon or after granting a divorce from the bonds of matrimony to either spouse, may alloiv the tvife to resume any name used by her before the marriage, and may also order the wife to refrain from using the surname of the husband as her name. [Emphasis supplied ]

This language demonstrates both the view of the Legislature that a woman upon marriage adopts her husband’s surname, and its intent that, after a marriage has been terminated, a wife does not have an unfettered legal right to use her maiden name or any name other than her husband’s surname. Rather, this determination is to be made within the discretion of the court. The general discretionary power of the court has been discussed in In re M, supra, and is further expressed in R. 4:72-4, which provides in part:

On the date fixed for bearing, the court, if satisfied from the filed papers, with or without oral testimony, that there is no reasonable objection to the assumption of another name by plaintiff, it shall by its judgment authorize him to assume such other name *' * * [Emphasis supplied |

After careful consideration of the merits of plaintiff’s application, the court is not so satisfied. This court has great concern for the stability of the family and the marriage relationship. As is stated in 41 Am. Jur. 2d, Husband and Wife, § 3:

The public interest in the marriage relationship is greater even than the private interest of husband and wife in their relationship. The law favors the marital relation and the permanence of the family. The family, with the obligations and privileges pertaining to it, reaches back of all state regulations, although it is necessarily regulated by positive law.

Plaintiff and her husband are both of youthful age. Although they have no children at this time, it is not at all improbable that they will eventually raise a family. The situation which would be created by the granting of plaintiff’s application, viz., plaintiff and her husband each continuing to use the surnames with which they were horn, would cause great confusion in the community in which they live and could well have a traumatic effect upon any children they might have. This is especially true in light of plaintiff’s use of her husband’s surname subsequent to her marriage. The problem would also arise of what surname to give the children of their marriage and the confusion and bureaucratic nightmares the process of selecting a surname would create.

As a result of the foregoing discussion, this court is of the opinion that there is sufficient cause in this matter for it in its sound discretion to deny plaintiff’s petition, and the same is hereby denied.


author:
Crane, J. A. D. Fritz, J. A. D.
      Kolovsky, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EDWARD SAVOIE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued January 22, 1974
    Decided May 10, 1974.

      Before Judges Kolovsky, Peitz and Crane.

      Mr. Robert A. Coogan argued the cause for appellant (Messrs. Sating, Moore, O’Mara & Coogan, attorneys; Mr. Daniel M. Waldman, on the brief).

      Mr. Peter S. Hamerslag, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Mr. Jared L. McDavit, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Crane, J. A. D.

Defendant, the building inspector of the Township of Marlboro, appeals from the judgment of conviction entered on a jury verdict finding him guilty of a violation of N. J. S. A. 2A :105-1 — this State’s “extortion statute,” State v. Begyn, 34 N. J. 35, 46 (1961) —• for accepting a “Christmas gift” of money (the evidence is in dispute as to whether it was $250 or $150) from IT. S. Home Corporation (U. S. Home) or its officers. The sentence imposed was a. fine of $750, to be paid within one month.

The indictment on which defendant was brought to trial contained two counts. The first count charged him with the common law crime (N. J. S. A. 2A:85-1) of misconduct in office, alleging that in or about December 1970,

* * !i’ [defendant] did willfully, knowingly and corruptly engage in misconduct in Ms said public office, that is, the said EDWARD SAVOIE did breach and violate the aforesaid duties by receiving and taking a sum of money, that is between one hundred fifty dollars and two hundred fifty dollars ($150.00-,$250.00) from TJ. S. Home Corporation, tr * * in connection with the inspection by the said EDWARD SAVOIE of homes being constructed in the Township of Marlboro aforesaid, by the TJ. S. Home Corporation aforesaid, * * *.

The second count charged a violation of N. J. S. A. 2A: 105-1, alleging that in or about December 1970,

* * *’ [defendant] by color of his said office Tas building inspector], knowingly, willfully, and corruptly did receive and take from TJ. S. Home Corporation, * * * a sum of money, that is between one hundred fifty dollars and two hundred fifty dollars ($150.00-$250.00), the said sum being a fee and reward not allowed by law to the said EDWARD SAVOIE for performing his duties as the public officer aforesaid, * * *.

The incidents which culminated in the indictment started in December 1970 with the preparation by officers of U. S. Home, then engaged in extensive building operations in several municipalities of this State, including the Township of Marlboro, of a list of persons to whom, and establishments to which, Christmas gifts were to be made.

Although the list was not marked into evidence at defendant’s trial, defendant’s proffer thereof being rejected by the trial judge, it is part of the record before us because it was before the trial court which denied defendant’s pretrial motion to dismiss the indictment on the ground that the State had allegedly unconstitutionally engaged in discriminatory selective prosecution of defendant. Cf. State v. Boncelet, 107 N. J. Super. 444 (App. Div. 1959). Defendant argues, among other things, that the denial of that motion was erroneous.

The list, headed “1970 Xmas,” listed a number of officials and employees and offices in seven municipalities, three employees of a bank, two employees of a gas company, three State Police barracks and various other persons who apparently were employees of U. S. Home or its affiliated companies. In some instances the gifts listed were “baskets,” in others they were quantities of liquor, and in still others they were sums of money. In the last-mentioned category 3 persons were to be given $25, 18 were to given $50 and 6 were to be given $100. Only in two cases was there to be a gift of money in a greater amount. Defendant Savoie, “building inspector,” was to receive $250 and the tax assessor of Marlboro was to receive a “basket” and $500.

The grand jury indicted only Savoie and the Marlboro tax'assessor. (We were informed at oral argument that trial of the indictment against the tax assessor resulted in an acquittal.)

At the trial of defendant Savoie the State’s proofs consisted of the testimony of the township’s mayor who merely described the offices held by defendant and the duties thereof; that of a Mr. Lambusta and a Mr. Frank, respectively an employee and vice-president in charge of operations of U. S. Home, and that of two state troopers who had interviewed defendant on July 17, 1972.

Lambusta testified that “quite close to Christmas” in December 1970, at the U. S. Home Office, he had been given the list and “a certain amount of money * * * to take care of those on the list.” The list had been prepared by officers of U. S. Home after recommendations had been made by superintendents of the company’s several projects. He put $250 in cash in an envelope on which he wrote defendant Savoie’s name and sealed the envelope. Other envelopes for other recipients were similarly prepared and all were put in piles “for the super to pick it up so he could distribute it for his job.” Thereafter the envelope destined for defendant was picked up by another employee of U. S. Home. The witness was not certain whether that employee was a Mr. Mattise or a Mr. Frank.

Frank testified that in December 1970 he obtained from Lambusta the sealed envelope with defendant’s name on it; that on a day which could have been “anywhere from a week to a day” before Christmas, as he “was about to deliver [the envelope] to the construction man, [he] happened to run into Mr. Savoie” and gave the envelope to him, indicating to him that “it was a Christmas gift” and wishing him “our Holiday Greetings.” Nothing more was said. On cross-examination, Frank testified that the envelope had not been solicited by Savoie; the “gift [was not] in anywise intended to influence [defendant] in the performance of his public duties”; and he, Frank, had always found Savoie to be a “stringent, forthright and honest individual.”

The next witness called by the State was Trooper Hal-lock. On July 17, 1972 he and Sergeant Feldherr had gone to defendant’s office in the town hall. They introduced themselves and told defendant that they were investigating his receiving $250 from U. S. Home “around Christmas of 1970.” Defendant, after being given the Miranda warnings, expressed a willingness to, and did, answer all the trooper’s questions. Although there was no support therefor in the trooper’s written report, his testimony and that of Sergeant Feldherr indicated that their “impression” was that at first defendant denied having received any money. According to Feldherr, that “impression” stemmed from the fact that defendant expressed surprise and “appeared to be unaware of what we were talking about momentarily.” In any event, defendant speedily acknowledged that he had received “some money,” and that while he “wasn’t sure of the amount,” it “could have been approximately $150.”

According to Halloek, defendant “stated that he did not feel it was wrong to take this money * * * that it was a Christmas gift * * * given to him to buy some liquor with”; that he, defendant, “did nothing special for U. S. Home and the gift was in appreciation for good service”; the “good service was not holding U. S. Home up on their building inspections.”

After offering the testimony of Sergeant Feldherr, which added nothing of substance to that given by Trooper Hal-lock, the State rested.

Defendant then moved for judgment of acquittal. The judge granted the motion as to the first count charging misconduct in office, ruling that an “evil” or “criminal” intent was an essential element to be proved by the State “as far as the misconduct [in office charge] [was] concerned,” and that the State had not offered any proof evidencing such evil intent “in some fashion” either by way of malfeasance, misfeasance or nonfeasance, so that the “misconduct in office [charge was] not supported by the proofs.”

However, the judge denied defendant’s motion for acquittal on the second count, ruling that “criminal intent is not an essential element of the statutory crime” of extortion proscribed by N. J. S. A. 2A:105-1.

The trial judge adhered to his determination that criminal intent was not an element of the crime in denying defendant’s renewed motion for acquittal after he and three character witnesses had testified, in its rulings on defendant’s requests to charge and in the charge given to the jury. The judge refused defendant’s request that the jury be told that “unless you find beyond a reasonable doubt that defendant committed the unlawful acts which are charged wilfully and knowingly, there must be a verdict of not guilty,” and refused to define “wilfully” and “knowingly” for the jury. Eurther, he ruled that the indictment would not go to the jury so that it would not see “the adverbs knowingly, wilfully and corruptly” set forth in the second count of the indictment — words which, the judge said, he would not charge because of his opinion that the criminal intent was not an element of the crime.

Defendant first contends that the trial judge committed prejudicial error in refusing to charge that in order to find defendant guilty of extortion they had to find that he made a demand for an illegal fee, present or reward. The request to charge was predicated upon language found in State v. Seaman, 114 N. J. Super. 19, 31 (App. Div. 1971), certif. den. 58 N. J. 594 (1971), cert. den. 404 U. S. 1015, 92 S. Ct. 674, 30 L. Ed. 2d 662 (1972), where the common law offense of misconduct in office was distinguished from the statutory offense of extortion. We are satisfied that in this context, i. e., an effort to demonstrate that both offeror and receiver were susceptible to bribery charges while only the receiver could be found guilty of extortion, the suggestion there made that a demand is necessary to extortion is an improvident overstatement. As indicated by the next sentence in the opinion after the italicized word “demanding” (114 N. J. at 31), the word “accepting” instead of “demanding” would have more aptly stated the law. Moreover, the reference to a demand in describing extortion was not made in connection with an issue necessary to the decision of that case; hence we do not regard it as controlling precedent. Jamouneau v. Division of Tax Appeals, 2 N. J. 325, 332 (1949). No mention of a demand is made in the statute, N. J. S. A. 2A: 105-1, nor was it included among the essential elements set forth in State v. Begyn, 34 N. J. 35, 46 (1961), where the crime of statutory extortion was stated to be “the receiving or taking by any public officer, by color of his office, of any fee or reward not allowed by law for performing his duties.”

It has also been established that an oppressive or coercive use of the powers of office amounting to an exaction need not be proved. State v. Matule, 54 N. J. Super. 326, 331 (App. Div. 1959). Accordingly we have no hesitancy in holding that proof of a demand is not a necessary element of the crime of statutory extortion under N. J. S. A. 2A: 105-1 and that acceptance of money as a tip or gratuity without making a demand is no defense. Commonwealth v. Hopkins, 165 Pa. Super. 561, 69 A. 2d 428 (Superior Ct. 1949); Perkins on Criminal Law, p. 370 (2nd Ed. 1969).

Defendant next contends that the court erred in denying his pretrial motion to dismiss the indictment on the ground that the State “engaged in discriminatory selective prosecution.” We find the argument to be without merit. The proofs offered showed that among the recipients of Christmas gratuities, prosecutions were initiated only against the two officials who received gifts in excess of $100. This did not satisfy the requirement of showing that the selection was deliberately based on some unjustifiable standard; selectivity in enforcement by itself, absent a showing of invidious and arbitrary classification, does not constitute a violation of constitutional equal protection rights. Oyler v. Boles, 368 U. S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962); State v. Boncelet, 107 N. J. Super. 444, 453 (App. Div. 1969) ; Annotation, “Penal Law —■ Discriminatory Enforcement,” 4 A. L. R. 3d 404 (1965).

Defendant’s final point, and one on which we unfortunately do not agree, is that the trial court erred in refusing to charge that criminal intent to commit the crime of extortion must be proved beyond a reasonable doubt. There have been holdings that the statute proscribing extortion is iterative of the common law and therefore the common law concept of mens rea, criminal intent or corrupt motive, must be read into the statute. Cutler ads. State, 36 N. J. L. 125 (Sup. Ct. 1873); Loftus v. State, 52 N. J. L. 223 (E. & A. 1889 —opinion reported only in 19 A. 183). Those cases dealt with justices of the peace who wore indicted for taking fees to which they were not entitled. Apparently in that era justices of the peace were compensated by means of fees paid to them by litigants. The cases hold that it would be a valid defense to show that the fees were received under an honest mistake as to whether the justice of the peace was entitled to the fee since, indeed, in some instances a complex legal analysis may have been required to determine the precise fee to which the justice of the peace was entitled. Those cases, we think, are not controlling in the instant situation where defendant was a full-time building inspector compensated by salary alone and not by fees received from persons doing business with his office. Of particular significance is the distinguishing fact that defendant knew full well that he was not entitled to receive fees at all.

The real thrust of defendant’s position is set forth in the request to charge submitted in his behalf. The trial court was asked to charge the jury that

A defendant who actually does violate the law would not be guilty of the criminal offense alleged unless he is either conscious of the fact that what he is doing constitutes a violation of the law, or unless he wholly disregards the law and pursues a course without making any reasonable effort to determine whether the plan he is following would constitute a violation of the law or not.

We are aware of no principle of law which would require proof of consciousness of culpability under the facts of this case. Belief that an act is lawful does not generally exempt the actor from criminal responsibility. Morss v. Forbes, 24 N. J. 341, 359 (1957); State v. Hanly, 127 N. J. Super. 436 (App. Div., decided April 1, 1974), and it has consistently been held for many years that the Legislature has the power to declare the doing of an act unlawful regardless of the knowledge of the actor that the act proscribed is unlawful. Halsled v. State, 41 N. J. L. 552, 589 (E. & A. 1879); State v. Labato, 7 N. J. 137, 149 (1951). The most recent pronouncement of our Supreme Court on the subject is contained in State v. Hatch, 64 N. J. 179, 184-185 (1973). There it was held that lack of knowledge that the manner in which a gun was transported violated the New Jersey gun control law, N. J. S. A. 2A :151-42(c), was not a defense.

To the extent that intent is or may be a necessary element in a statutory extortion prosecution, the necessary intent may be spelled out from receipt of the money, a fact which defendant readily admitted on both direct and cross-examination. In State v. Begyn, supra, 34 N. J. at 47, it was said that “The proof of receipt of a knowingly unlawful payment in connection with his duties is enough and furnishes the necessary criminal intent.” We do not construe this language as requiring that the State prove that a defendant knew receipt of money was unlawful; that was not an issue in Begyn. That this is so is demonstrated by the language immediately preceding that quoted above:

*■ * * it is clear that a violation of our statute occurs whenever an officer, by color of his office, receives a reward to which he is not legally entitled by reason of or in connection with Ms official duties.

We are not dealing here with unknowing possession of contraband articles or a lack of knowledge of the nature of the thing possessed, in which ease it might be said to be against public policy and an abuse of police power to ascribe criminal penalties. Cf. State v. Labato, supra, 7 N. J. at 150; State v. Hudson Cty. News Co., 35 N. J. 284 (1961). Nor, in view of defendant’s admission of receipt of the money, are we dealing with the issue, of knowledge of the fact of possession. In the absence of clear statutory language, we find no logical reason to interpret the statute as requiring a subjective test of consciousness of guilt as is urged by defendant’s argument. A defendant’s subjective belief in the lawful character of his conduct might be relevant in some circumstances. The possible utility of such a test in bigamy prosecutions was considered but left unresolved in State v. DeMeo, 20 N. J. 1, 14 (1955). ,But judicial solicitude for personal beliefs and attitudes has not generally been extended to public officials in regard to the performance of their official duties; as contrasted to ordinary citizens, they are held to high ethical standards. In Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 474-475 (1952), cert. den. 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652, reh. den. 344 U. S. 888, 73 S. Ct. 181, 97 L. Ed. 687 (1952), it was observed that public officers stand in a fiduciary relation to the people; they have an obligation to display good faith, honesty and integrity; they must be impervious to corrupting influences and must transact their business frankly and openly in the light of public scrutiny. Adherence to such high standards is inconsistent with a conscientious belief that the acceptance of a substantial sum as a gratuity is lawfully permitted. We hold, therefore, that such a belief, under the circumstances of this case, is not a valid defense and that the trial court did not err in refusing defendant’s request to charge.

We have also examined and considered defendant’s arguments relating to the trial judge’s refusal to charge in general terms on the subject of criminal intent and find them to be without merit.

The judgment of conviction is affirmed.

Fritz, J. A. D.

(concurring in the result). In general agreement on all issues except one, we go our separate ways with respect to defendant’s claim of error in the failure of the trial judge to charge the necessity for criminal intent — a mens rea — before there can be a conviction of the crime of extortion. We strain at a gnat and swallow a camel in our effort to analyze precedent toward an avowed end of saying yes or no where we are asked if criminal intent is a necessary element of that crime.

Without conceding the viability of the century-old case of Cutter v. State, 36 N. J. L. 125 (Sup. Ct. 1873) (unmentioned in an opinion by our then Chief Justice in State v. Barts, 132 N. J. L. 74 (Sup. Ct. 1944), aff’d o. b. 132 N. J. L. 420 (E. & A. 1945), which opinion was said in State v. Begyn, 34 N. J. 35, 46 (1961), to have enlarged the construction of the statute from the ancient “originally intended” reiteration of the common law to “its present day scope”), I conceive the problem rightly to be not whether criminal intent must be shown, but rather what the nature of the intent must be before the statute is offended. Such an approach enables a harmonization of the old and the new (including, in addition to the cases previously cited, State v. Weleck, 10 N. J. 355 (1952) and State v. Matule, 54 N. J. Super. 326 (App. Div. 1959) certif. den. 29 N. J. 583 (1959)), and more importantly, permits the judicial function to shine as brilliantly in the present days of grievously pervasive official misfeasance as it did in the days of the too.often infamous justices of the peace. A search of this magnitude is, I submit, not only easier on the wind and more rewarding, but more likely to do justice in a sense compatible with both legality and morality.

I am convinced this is the thrust of Begyn, supra, in its statement (at 34 N. J. p. 47) that “The proof of receipt of knowingly unlawful payment in connection with his duties is enough and furnishes the necessary criminal intent.” This concise, elucidative and articulate statement at once rejects the necessity for a demonstration of the guilty mind in the traditional style of dark-alley slinking with furtive over-the-shoulder glances. It tells us as well that all the intent necessary is present upon receipt of a payment, provided only that the official knows the payment to be unlawful. As against an anticipated suggestion that this puts us back where we were when we started, I am satisfied that the phrase “knowingly unlawful payment,” read in context with the earlier statement in Begyn, proscribing receipt of “a reward to which [the official] is not legally entitled by reason of or in connection with his official duties” (34 N. J. at 47), means simply a payment which the official knew was not among the prescribed emoluments of his office. In addition to other virtues, such a test has a precise objectivity.

While I consider this the sense of Begyn, and therefore am bound to it irrespective of my own view of things, I am constrained to comment that, especially in this day and age, the obligation thus imposed might well serve to rehabilitate the public servant image in a badly disillusioned country. Of equal significance, it seems to me legislative intent might be expected to require, most reasonably, that a public servant will take no more for his public services than is specified for the office.

Measured thusly the charge below was adequate, in light of the fact that, as the judge noted in his charge, defendant did not deny that “it was money that was not due to him by virtue of his official duties.”

I am to affirm.

Kolovsky, P. J. A. D.

(dissenting). I dissent because in my opinion the trial court was in error in ruling that criminal intent is not an element of the crime described in N. J. 8. A. 2A:105-1. That statute reads as follows:

Any judge, magistrate or public officer who, by color of his office, receives or takes any fee or reward not allowed by law for performing his duties, is guilty of a misdemeanor.

It is, of course, true that the language of the statute, read literally, would make irrelevant the intent of the recipient. However, the literal language is not of itself dispositive in resolving the controlling question, whether the legislative intent was to provide criminal sanctions for proscribed conduct without the necessity of proving criminal intent, particular^ where (as here) the statute iterates, with some modifications, a common law offense. “That which is properly implied is as much part of our statutory law as that which is expressed.” State v. De Meo, 20 N. J. 1, 13 (1955); see also, State v. Hudson Cty. News Co., 35 N. J. 284 (1961).

The question of whether the Legislature intended, in enacting the cited extortion statute — which “had its origin at least as early as 1796,” State v. Begyn, 34 N. J. 35, 46 (1961) — to require the corrupt intent of the recipient to be shown as an element of the crime is not an open question. The question was answered in the affirmative more than 100 years ago in Cutter v. State, 36 N. J. L. 125 (Sup. Ct. 1873), and that answer has not been modified or questioned since, either by the courts or by the Legislature. Loftus v. State, 52 N. J. L. 223 (E. & A. 1890 — opinion printed only in 19 A. 183); State v. Begyn, supra, 34 N. J. at 46-47 (1961); see also, Clark & Marshall, Crimes (7th ed. 1967), § 12.17 at 898.

So, in Loftus v. State, supra, our highest court said:

The statute of this state (Revision, p. 230, § 23) defines the crime of extortion to be the receiving or taking, by color of an office, any fee or reward whatever not allowed by the laws of this state for doing the office. In Gutter v. State, 36 N. J. L., 125, it was held that this statute must be construed in light of the common law which it designed to reiterate, and that the taking must consequently be with corrupt motive. That this is the sound exposition of the law is not questioned. [19 .1. at 184]

In Cutter v. State, supra, Chief Justice Beasley, in rejecting the State’s contention that since the statute is explicit in is terms, “the mere taking of an illegal fee [is] a criminal act, without regard to the intent of the recipient,” said:

* * * Manifestly *' * *' the terms of this section are subject to certain practical limitations. This is the case with most statutes couched in comprehensive terms, and especially with those which modify or otherwise regulate common law offenses. In such instances the old and the new law are to be construed together, and the former will not be considered to be abolished except so far as the design to produce such effect appears to be clear. In morals it is an evil mind which makes the offence, and this, as a general rule, has been at the root of criminal law. The consequence is that it is not to be intended that this principle is discarded, merely on account of the generality of statutory language. It is highly reasonable to presume that the law makers did not intend to disgrace or to punish a person who should do an act under the belief that it was lawful to do it. And it is this presumption that fully justifies the statement of Mr. Bishop, “that a statute will not generally make an act criminal, however broad may be its language, unless the offender’s intent concurred with his act.” 1 Crim. Law, § 80.
This doctrine applies with full force to the present case. If the magistrate received the fees in question without any corrupt intent, and under the conviction that they were lawfully his due, 1 do not think such act was a crime by force of the statute above recited.

The trial court’s reliance on State v. Weleck, 10 N. J. 355 (1952), as authority for its ruling was unwarranted. That case involved an attack on the sufficiency of an indictment charging a borough attorney with an attempt to extort, by demanding $15,000 in installments from the victim, under a promise “corruptly to exhort and influence” the governing body to amend a zoning ordinance. No question was raised as to the sufficiency of the allegation of a corrupt motive; the issues presented were bottomed on other alleged deficiencies in the indictment, and it was on that background that the court said: :

It thus appears that the essential elements of the crime of extortion, both under the statute and at common law, are (1) an officer (2) by color of his office (3) taking money (4) that is not due him. [at 371]

That the omission of any reference to “corrupt intent” in the quoted sentence cannot fairly be interpreted as a change in the rule promulgated in Cutter v. State, supra, is evident from the court’s citation of Cutter earlier in its opinion:

[A] reading of R. S. 2:127-1 [now N. J. S. A. 2A :105-1] does not reveal any plain intention on the part of the Legislature to alter or abolish the common law crime of extortion. In the absence of such intention the statute must be considered with reference to the common law, Cutter v. State, 36 N. J. L. 125, 126 (Sup. Ct. 1873) ; Loftus v. State, 52 N. J. L. 223 (E. & A. 1890 — opinion printed only in 19 A. 183) ; State v. Norton, 23 N. J. L. 33 (Sup. Ct. 1850) ; and State v. Ellis, 33 N. J. L. 102 (Sup. Ct. 1868). [at 371]

Further, any possible question whether Welects was intended to change the preexisting interpretation of the statute was eliminated by the court’s later opinion in State v. Begyn, supra, in which the court emphasized that the statutory purpose was

* * * to penalize the officer who non-vnnoeentVy insisted on a larger fee than he was entitled to or a fee where none was permitted or required to be paid for the performance of an obligatory function of his office. [34 N. J. at 46; emphasis supplied]

including, as expanded by the later cases, an officer who re*ceived such payments for performance of a discretionary act or “for not doing his duty.” 34 N. J. at 47. Begyn expressly recognized the continued viability of the necessity of showing a criminal intent:

The proof of receipt of a knowingly unlawful payment in connection with his duties is enough and furnishes the necessary criminal intent, [at 47]

In concluding that we are bound by the long-settled interpretation of the extortion statute, I do not suggest that I approve of permitting public officers or employees to accept gifts from members of the public they are obligated to serve. That practice is undesirable and improper, and has been so recognized by administrative regulations which are being adopted with increasing frequency to prohibit the practice. See, for example, the prohibition against the giving of gratuities by attorneys and parties set out in R. 1:16-2, a court rule originally adopted in 1961.

However, as improper as the practice is, the receipt of such gifts is not a crime unless its receipt is under circumstances proscribed by a criminal statute — and here, as I have shown, the applicable statute requires a showing of corrupt intent.

As Chief Justice Weintraub said in his concurring opinion in State v. Cohen, 32 N. J. 1 (1960) :

Needless to say, I do not admire immorality. But the equation of immorality with criminality is something else. Men may not agree upon what is immoral. Moro than that, opinions may divide upon what immorality is worthy of the heavy hand of criminal liability. The State wisely leaves much to the sanction of private contempt and censure. Pew of the Ten Commandments found their way into criminal law. I could not agree that a public officer is guilty of crime in office if he fails to honor his mother or father, or takes the name of God in vain, or covets the house, wife, or anything else that is his neighbor’s, or labors on the Sabbath as some judges find they must. The question whether immorality shall he denounced as criminal falls solely within the province of the Legislature, the spokesman of the social conscience. Criminal law is no place for judicial ingenuity and invention, [at It; emphasis supplied]

Defendant was therefore entitled to a charge that, in order to return a verdict of guilty, the jury must find that defendant acted with a corrupt intent; that he knew that the payment made to him was unlawful. In my opinion, the court’s refusal to so charge requires a reversal and a remand for a new trial.

I agree with the majority that there is no merit to defendant’s contention that the jury should have been told that “demand of an illegal fee, present or reward must be demonstrated by the State to sustain a conviction under N. J. S. A. 2A:105-1.” Although most of the reported cases involved situations in which the recipient had first demanded the payment which he then received, and that fact was referred to in the court’s opinions, there is no requirement that a demand be shown. Proof of receipt by an officer of a knowingly unlawful payment is sufficient. State v. Begyn, supra, 34 N. J. at 47; “it is no defense that he accepted it merely as a ‘tip or gratuity.’ ” Perkins on Criminal Law (2d ed. 1969), at 370.

Eurther, I agree that the court properly denied defendant’s pretrial motion to dismiss the indictment on the alleged ground “that the State engaged in discriminatory selective prosecution of the defendant.”

I would reverse and remand for a new trial.

      Aecording- to defendant, he was on official business at a building site of TJ. S. Home on a date he believed was December 24, 1970, when Mr. Frank gave him an envelope, saying: * * on behalf of the Company this is their way of saying Merry Christmas, Merry Christmas, Ed. You may purchase the type of Scotch that you like.” Defendant’s best recollection was that the envelope, when opened, contained $150. He used it to purchase a case of Scotch. He denied that he had solicited the gift and said that he had no prior knowledge that he was to be given it.
      He explained the reference in his conversation with the troopers to the “good service rendered U. S. Home” to his action in scheduling requested inspections as quickly as his time would permit instead of taking all the time allotted to him under governing regulations. He insisted that receipt of the gift in nowise affected the honest discharge of his duties and obligations as building inspector.


author: Handler, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. KENNETH FRANCIS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted March 18, 1974
    Decided May 14, 1974.

      Before Judges Conford, Handler and Meanor.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. David H. Ben-Asher, designated counsel).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Mr. John DeCicco, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Handler, J. A. D.

Defendant was convicted by a jury of assault with an offensive weapon and atrocious assault and battery. He was acquitted of assault with intent to kill. It is asserted that there was reversible error in the trial court’s refusal to permit defendant to testify as to his alibi defense.

The jury evidently accepted the State’s evidence which demonstrated that Eugene Jackson went to a place called the “Big House” sometime after 2 a.m. on September 17, 1972. While there, defendant, a complete stranger to Jackson, approached him in order to talk to him, ostensibly about “a girl [who] drives a white Mark IV.” Defendant then shot Jackson in the stomach. Defendant was identified by Jackson'and by another witness who was one of several persons at the scene. Other evidence of a circumstantial nature further implicated defendant. This included the finding of a box of shells on the front seat of a blue Ford pick-up truck registered to defendant, which shells were similar to a spent shell recovered at the place of the shooting. Also, defendant’s estranged wife was the registered owner of a white Lincoln Continental Mark IV automobile.

Several defense witnesses, including defendant’s wife, testified that they were at the “Big House” at the time of the shooting but did not see defendant there. When defendant testified, he denied that he was at the “Big House” on the night of September 16 and 17 and that he had shot Jackson ; he was not asked where he was at the time of the shooting. On cross-examination and subsequently on rebuttal, he denied that he had told a detective that he had been at the “Big House” earlier on September 16. The detective, on rebuttal, testified that defendant had remarked that he had been there earlier that day.

After the State rested and before the presentation of defendant’s case, the State requestd an instruction that defense counsel could not elicit any information about an alibi defense. The State noted that the defendant had failed to comply under B. 3:11-1 and 2 with two separate requests on April 5 and May 21, 1973 for notice of alibi. Defendant admitted that no defense of alibi was submitted. The defense offered that it “would not bring in any other witnesses as to him [defendant] being some other place other than his own testimony.”

The State noted that it had no objection to testimony of either the defendant or other witnesses that the defendant was not present at the scene. The State did object to a claim by the defendant that he was at some other specific place at the time of the shooting. Defense counsel argued that the alibi rule only reached other witnesses and not defendant. The trial judge ruled that B. 3 :11-1 required defendant (a) to submit the names and addresses of alibi witnesses and (b) to state the specific place at which he claims to have been at the time of the offense. Accordingly, he denied defendant the right to testify with respect to any other place that he may have been at the time of the alleged offense.

The constitutional validity of notice of alibi rules has been established. Williams v. Florida, 399 U. S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970); State v. Angeleri, 51 N. J. 382, cert. den. 393 U. S. 951, 89 S. Ct. 372, 21 L. Ed. 2d 362 (1968) (upholding the validity of B. B. 3:5-9, the predecessor of the current rule). It has been stated most recently that “the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given criminal defendants.” Wardius v. Oregon, 412 U. S. 470, 472, 93 S. Ct. 2208, 2211, 37 L. Ed. 2d 82 (1973). R. 3:11-1 provides specifically for such reciprocal discovery, viz:

If a defendant intends to rely in any way on an alibi, he shall, on written demand of the prosecuting attorney and within 10 days thereafter, furnish a written hill of particulars, signed by him, stating the specific place or places at which he claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi. Within 10 days after receipt of such bill of particulars from the defendant, the prosecuting attorney shall, on written demand, furnish the defendant or his attorney with a written bill of particulars stating the names and addresses of the witnesses upon whom the State intends to rely to establish defendant’s presence at the scene of the alleged offense. The trial court may order the amendment or amplification of such partciulars, or of the time of their service, as the interest of justice requires.

With respect to sanctions for non-compliance with the primary rule, R. 3 :11-2 provides:

If such bill of particulars is not furnished as required, the court may refuse to allow the party in default to present witnesses at trial as to defendant’s absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment as the interest of justice requires.

The exclusion of the testimony of nonparty witnesses as a specific penalty for the failure to adhere to the notice of the alibi rule has been upheld. State v. Nunn, 113 N. J. Super. 161 (App. Div. 1971); see also, State v. Woodard, 102 N. J. Super. 419, 426-427 (App. Div.), certif. den. 53 N. J. 64 (1968), cert. den. 395 U. S. 938, 89 S. Ct. 2004, 23 L. Ed. 2d 453 (1969); see generally Annotation, “Validity and Construction of Statute Requiring Defendant in Criminal Case to Disclose Matter as to Alibi Defense,” 45 A. L. R. 3d 958, 974-980 (1972). The imposition of this sanction, however, is not absolute or automatic, but rather a discretionary act tempered by what may be required in the “interest of justice.” R. 3 :11-2. State v. Harris, 117 N. J. Super. 83, 91-94 (App. Div. 1971).

There is substantial support for the thesis that a defendant’s own alibi testimony is subject to exclusion to the same extent as the testimony of other witnesses corroborative of the alibi. Rider v. Crouse, 357 F. 2d 317, 317-318 (10 Cir. 1966); Lake v. State, 257 Ind. 264, 274 N. E. 2d 249, 252-253 (Sup. Ct. 1971); State v. Rider, 194 Kan. 398, 399 P. 2d 564, 567 (Sup. Ct. 1965); State v. Escobedo, 44 Wis. 2d 85, 170 N. W. 2d 709, 712-713 (Sup. Ct. 1969); State ex rel. Simos v. Burke, 41 Wis. 2d 129, 163 N. W. 2d 177 (Sup. Ct. 1968). Contra: State v. Post, 255 Iowa 573, 123 N. W. 2d 11, 18-19 (Sup. Ct. 1963); State v. Stump, 254 Iowa 1181, 119 N. W. 2d 210, 218, cert. den. 375 U. S. 853, 84 S. Ct. 113, 11 L. Ed. 2d 80 (Sup. Ct. 1963); People v. Rakiec, 260 App. Div. 452, 23 N. Y. S. 2d 607, 613 (App. Div. 1940), aff’d 289 N. Y. 306, 45 N. E. 2d 812 (Ct. App. 1942). The Supreme Court has thus far not passed upon the validity of sanctioning noncompliance by the exclusion of testimony. Williams v. Florida, supra 399 U. S. at 83, n. 14; 90 S. Ct. 1893, 26 L. Ed. 2d 446, Wardius v. Oregon, supra 412 U. S. at 472, n. 4, 93 S. Ct. 2208, 37 L. Ed. 2d 82.

Defendant contended below that R. 3 :11-2 does not permit or contemplate the exclusion of a defendant’s own alibi testimony as a sanction for noncompliance. We disagree and note that he does not press that argument on appeal. Eather it is urged that the trial court abused its discretion in prohibiting any testimony by defendant himself as to his whereabouts at the time of the shooting.

We are of the view that the trial court should have done more to explore and to resolve the question of whether the State would have been unfairly surprised or disarmed by defendant’s testimony of alibi and if so whether that disadvantage might have been redressed by a reasonable continuance. This is especially important where the alibi witness is the defendant himself and the detriment to his defense because of his inability to testify for himself is likely to be significant. We decline to hold, however, that the court’s failure in this respect constitutes an error mandating a reversal.

Defendant here failed to respond to two requests to furnish alibi particulars in accordance with R. 3:11 — 1. At no time prior to trial did he indicate that he would offer alibi testimony. On opening, his counsel stated only that defendant was not present at the scene of the shooting. More importantly it has not been shown by a proffer or otherwise that the court’s ruling visited any palpable prejudice on defendant. He was willing, for example, to refrain from offering the testimony of any corroborative alibi witnesses and to limit his own testimony solely to a statement as to a particular place where he was at the time of the assault. He did not indicate by a proffer what this testimony would be nor did he suggest that he would be willing to have the trial continued in order to permit the State to investigate the alibi. He did testify, however, that he was elsewhere when the shooting took place. Under all of the circumstances and in the context of the strong evidence of defendant’s guilt, defendant has failed to persuade us that the ruling on the part of the court below in limiting defendant’s alibi testimony was a mistaken exercise of discretion or had any appreciable import on the jury’s verdict.

We have further noted that defendant was convicted of and sentenced to concurrent terms for both assault with an offensive weapon and atrocious assault and battery. Although not raised on appeal, the State has conceded, and properly so, that these offenses merge. Accordingly the conviction for assault with an offensive weapon is vacated. The conviction for atrocious assault and battery is affirmed.