(86 N. J. L. 120)

STATE v. QUINLAN. (Supreme Court of New Jersey. June 5, 1914.) 1. CRIMINAL LAW (§ 13*) CREATION AND

DEFINITION OF OFFENSES.

Crimes Act (2 Comp. St. 1910, p. 1744) § 5e, making it a high misdemeanor to advocate, encourage, justify, or incite the killing or injuring of any person or class of persons, is not uncertain as leaving to the jury to determine what is meant by "advocate, encourage, justify, praise, or incite."

he did not consult a lawyer about the matter, and was not advised until this suit was brought. It appeared that the defendant wrote his wife that he would secure an apartment, and, at another time, that he would secure quarters in a boarding house. Her letters indicate an acquiescence in these plans, which he then abandoned, saying he could get neither the apartment nor the hoarding house. He says the reason why he could not get them was that when he went to Hackensack to see his wife her talk was different from her letters. She also says that his talk was different from his letters, and so the parties did not resume marital relations. I am satisfied that, if the defendant was earning sufficient to enable them to live in substantially the style adopt-ing, or printing, or by any other mode, to aded by them at the time of their marriage, or in somewhat inferior style, if there was any certainty as to its continuance, this proceeding would never have been brought.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 13, 14; Dec. Dig. § 13.*] 2. CRIMINAL LAW (§ 13*) CREATION AND DEFINITION OF OFFENSES.

That Crimes Act (2 Comp. St. 1910, p. 1744) § 5e, making it a high misdemeanor for any person, in public or private, by speech, writ

vocate, encourage, justify, praise, or incite the of persons, groups together various means by killing or injuring of any individual or class which the end may be accomplished and makes any one of them an offense does not render it uncertain and void.

She had lived hoping for the arrival of the day when he would be capable of prop-Law, Cent. Dig. §§ 13, 14; Dec. Dig. § 13.*] [Ed. Note. For other cases, see Criminal erly caring for his family, and this continued down to the date of the illness of their 3. CRIMINAL LAW (§ 13*) CREATION AND DEFINITION OF OFFENSES. son, Galen, in January or February, 1913, during which he, becoming incensed at not being permitted, against the doctor's orders, to see his child, stopped sending her further moneys. When it is considered that this man for a whole year lived within a few miles of his child and did not make an effort to

Crimes Act (2 Comp. St. 1910, p. 1744)
§ 5e, making it a high misdemeanor to advocate.
encourage, justify, praise, or incite the killing
or injuring of any individual or class of per-
sons, is declaratory of the common law.
[Ed. Note. For other cases, see Criminal
Law, Cent. Dig. §§ 13, 14; Dec. Dig. § 13.*]
4. CRIMINAL LAW ($ 45*)-SOLICITATION.
Under Crimes Act (2 Comp. St. 1910, p.
1744) § 5e, making it a high misdemeanor to
advocate, encourage, justify, praise, or incite
the killing or injuring of any individual or class
of persons, it is immaterial whether any per-
son or class of persons were, in fact, killed or
injured; the gravamen of the offense being in
the incitement or encouragement, and not in
the actual commission of the offense.

Law, Cent. Dig. § 52; Dec. Dig. § 45.*]
[Ed. Note. For other cases, see Criminal
5. CRIMINAL LAW (§ 368*) - EVIDENCE - RES

GESTÆ.

see him, it is plain that his conduct on this occasion was absolutely unjustifiable, and was properly so looked upon by his wife. This, to my mind, completely weaned her love for him, and she then finally concluded to put into effect what for a long time was inchoate in her mind, restrained only by her hope and love to seek a divorce. But I am unable to determine at what particular period it can be said that a desertion commenced. She consented to his leaving on these various trips. She bought clothes for him to go as manager on one of the trips. Her letters, after his undertaking this latter trip, were substantially of the same tenor as before. There is nothing in the letters written by or to him during two years prior to the filing of the petition, or even down to the date of the filing of the petition, nor is there anything in the testimony, as I read it, which could, in any manner, be treated as information to the defendant that the wife demanded a resumption of marital relations. These letters and the evidence indicate an acquiescence in their living apart until he could earn enough to support her. Provost v. Provost, 71 N. J. Eq. 204, 63 Atl. 619, affirmed 73 N. J. Eq. 418, 75 Atl. 1101; Foote Where, in a prosecution for advocating, env. Foote, 71 N. J. Eq. 273, 65 Atl. 205; McAl-couraging, and inciting the injuring of a class lister v. McAllister, 71 N. J. Eq. 13, 62 Atl. of persons, the state showed that accused used 1131. language tending to incite strikers to injure strike breakers in a mill, evidence that the I am constrained to decree that the bill strikers did, in fact, disturb and injure the be dismissed. strike breakers was properly admitted, though

Where, in a prosecution for advocating, encouraging, and inciting the injuring of a class of persons, the language used by accused at a public gathering was, "I make a motion that we go to the silk mills; * * * no matter how we get them out, we got to get them out," the court properly permitted the state to show as a part of the res gestæ that a speaker immediately preceding used this language: "I want you people to go to the mills, and I want you people to advise the people to join you in this strike. If they refuse, I want you to go into the mills, and I want you to drive them out of the mills. I want you to knock them out of the mills, even if it takes your extreme force."

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. § 368.*]

6. CRIMINAL LAW (§ 661*)-INCITING CRIME -ADMISSIBILITY OF EVIDENCE.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

It was unnecessary for the state to prove it to make out the offense.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 758, 1606; Dec. Dig. 8 661.*]

7. CRIMINAL LAW (§ 377*)-EVIDENCE-GOOD REPUTATION OF ACCUSED.

It is within the discretion of the court whether to permit a witness to testify as to accused's good reputation three or four years prior to the finding of the indictment; there being no offer by accused to show a continuation of such good reputation.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 836, 837, 840; Dec. Dig. § 377.*]

8. CRIMINAL LAW (§ 11702*) - APPEAL — HARMLESS ERROR-EVIDENCE.

In a prosecution for inciting the injuring of a class of persons, though it was error under Evidence Act (2 Comp. St. 1910, p. 2217) § 1, providing that a witness may only be asked on cross-examination if he has been convicted of crime to affect his credibility, to permit the prosecutor to ask a witness for accused whether she had ever been arrested for picketing, it was harmless, as she had already answered without objection that she had been picketing and was still doing so.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 11702.*]

9. WITNESSES (§ 277*)-CROSS-EXAMINATIONSCOPE AND EXTENT.

In a prosecution for inciting strikers to injure strike breakers, the court properly permitted accused to be asked on cross-examination "When you came here, did you not advocate the doing away with all wage relations between capital and labor?"

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.*] 10. WITNESSES (8 372*)-IMPEACHMENT-INTEREST AND BIAS.

In a prosecution for inciting strikers to injure strike breakers, it was within the discretion of the court to permit the prosecutor to ask one of accused's witnesses on cross-examination, as bearing on her interest and bias, concerning her views on economic questions.

[Ed. Note.-For other cases, see Witnesses,

KALISCH, J. The plaintiff in error was convicted in the Passaic county quarter sessions court on an indictment based upon section 5e of the Crimes Act (C. S. p. 1744), which provides as follows:

"Any person who shall, in public or private, by speech, writing, printing or by any other mode or means, advocate, encourage, justify, praise or incite the unlawful burning, destruction of public or private property or advocate, encourage, justify, praise and incite assaults upon the army of the United States, the National Guard, or the police force of this or any other state or of any municipality, or the killing or injuring of any class or body of persons, or of any individual shall be guilty of a high misdemeanor."

The legality of the judgment pronounced upon this conviction is brought up for review on a strict bill of exceptions and under the section 136 of the Criminal Procedure Act.

The essential part of the indictment, the validity of which is attacked by the plaintiff in error, reads as follows:

"The said Patrick Quinlan did willfully and unlawfully in public by speech advocate, encourage, and incite the said persons so assembled at said meeting to assault, beat, and do injury to a certain class and body of persons residing in said city of Paterson, the township who were silk operators employed in said silk of Acquackanonk and the borough of Haledon, mills in said different municipalities, in said county, and who were not on strike; in that the said Patrick Quinlan did then and there utter and speak the following words: 'I make a motion that we go to the silk mills, parade through the streets, and club them out of the mills; no matter how we get them out, we got to get them out'-contrary to the form of the statute," etc.

Before the jury was sworn the plaintiff in error moved to quash the indictment upon these grounds: (1) That the statute under which the indictment is found restrains and abridges liberty of speech in violation of article 1 and section 5 of the state Constitu

tion; (2) that the indictment does not set

Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*] 11. INDICTMENT AND INFORMATION (§ 125*)-forth any offense against the statute on which

JOINDER OF OFFENSES-DUPLICITY.

The words "advocate," "encourage," "incite," as used in Crimes Act (2 Comp. St. 1910, p. 1744) § 5e, making it a high misdemeanor to advocate, encourage, or incite the killing or injuring of persons, are cognate terms, and hence may be used in a single count of an indictment without rendering it duplex.

[Ed. Note.-For _other_cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]

Error to Court of Quarter Sessions, Passaic County.

it is based; (3) that the language set forth in the indictment which is charged to be unlawful does not import the meaning attributed to it or any meaning which is unlawful.

The trial judge refused to quash the indictment, and allowed the plaintiff in error an exception to his ruling.

[1] The first ground urged in the court below for quashing the indictment is not mentioned or argued here, and was apparently abandoned, and the proposition substituted Patrick Quinlan was convicted for encour for it and argued and urged before us is aging and inciting the killing or injuring of that the indictment is ineffective to charge a a class of persons, and he brings error. Af-crime, because the statute under which it is

firmed.

framed violates the Constitution of this

Argued November term, 1913, before GUM-state, in that the statute is uncertain in MERE, C. J., and PARKER and KA- describing the offense, and therefore void. LISCH, JJ.

Henry Marelli, and Hunziker & Randall, all of Paterson, for plaintiff in error. Michael Dunn, Prosecutor of the Pleas, of Paterson, for the State.

The argument builded on this head is that, since the Legislature alone has the power to define what shall constitute a crime, it cannot delegate this power to a jury. It is claimed that the Legislature has practically

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

delegated its power, in this respect by leav- | defendant was convicted under an indictment ing to the jury to determine what is meant charging him with having advised, without by "advocate, encourage, justify, praise, or incite," etc.

This contention is palpably unsound. A plain reading of the statute makes it manifest that it is not open to the attack leveled against it. There is no organic law or rule of sound public policy that requires the Leg-ed by the woman. Green, C. J., in disposislature to define the meaning of English ing of the objection said: words in common and daily use.

to go into the mills and I want you to drive them out of the mills. I want you to knock them out of the mills, even if it takes your ex

treme force."

It was following this that the defendant made the motion in which he used the language set out in the indictment. We think part of the res gesta. It was clearly withthe testimony was properly admitted as a in the issue, for the defendant was charged with advocating, encouraging, and inciting the injuring of a class of persons, and the testimony tended to show that he was par ticipating with Mrs. Jones in a common design to that end.

not charge a complete offense, because it does not set out that there was a killing or injuring of a class or body of persons or of an individual. But, before leaving this topic, it would be well to mention another potent reason against the claim made by the plaintiff in error in this respect. Bearing in mind the conditions under which the statute came into vitality, it lends force to the view that the Legislature had the purpose to make the punishment for encouraging, inciting, or advocating murder or assault and battery more drastic than formerly. It raised violations under the act from simple misdemeanors to high misdemeanors. [6] The validity of the judgment is further The framers of the act had evidently in assailed upon the ground that it was harmmind the prevention of breaches of the pub-ful error for the trial judge to have permitlic peace and the protection of human life and limb, and deemed that these could be best effected by making it a high misdemeanor for any one who shall, in public or private, by speech, etc., or by any other mode and means, advocate, encourage, or incite to such breaches of the law, irrespective of the fact whether such breaches of the law actually took place or not. The gravamen of the statutory offense lies in the incitement or encouragement to the commission of the offenses denounced, and not in the actual commission of them. The motion to quash therefore was properly denied.

ted the state to introduce testimony against the defendant's objection as to what took place at the "Miesch mill." The "Miesch mill" was a silk mill. The workmen of that mill were on a strike, and strike breakers had taken some of their places. We think the state assumed an unnecessary burden when it undertook to show that as a result of the defendant's utterances the strikers went to the "Miesch mill" and behaved in a riotous manner. The utterances ascribed to the defendant were unambiguous. The sense in which they were made and used needed no explanation. The defendant's crime was com[5] It is further urged before us that the plete when he uttered the words. Although admission of testimony against defendant's it was unnecessary under the language used objection as to what was said by Elizabeth in this case to show what effect it had on Gurley Flynn Jones, who was addressing an the persons addressed, proof of circumstancaudience assembled in the hall, immediate-es or acts showing that it had the effect dely preceding the utterance made by the de- signed, as expressed by the defendant, canfendant as set forth in the indictment, was not be said to be irrelevant. harmful error, necessitating a reversal of the judgment. It appears that several witnesses called by the state were permitted to testify, against the defendant's objection, as to remarks made by Mrs. Jones immediately preceding a motion made by the defendant, which motion was as follows:

"I make a motion that we go to the silk mills; no matter how we get them out, we got to get

them out."

A reference to Mrs. Jones' remarks shows them to have been of an inflammatory character, but the argument made is that they were irrelevant, incompetent, and immaterial, because the issue before the court and jury was whether the defendant at that time and place uttered the language charged on the indictment. It is further argued that her remarks were not part of the res gestæ, since it was not shown that they were made in furtherance of a common design, or that the defendant was in any way concerned in their making. But this objection is fully answered by the language used by the defendant when he rounded out the peroration of Mrs. Jones, as described by the state's witness

Tracey. Mrs. Jones said:

[7] Another ground relied on by the plaintiff in error for a reversal of the judgment is the exclusion by the court of testimony of George Gordon Battle, offered by the defendant to prove his reputation as a law-abiding citizen. On the preliminary examination of this witness it appeared that he knew the defendant five or six years; that he did not know where the defendant resided at the time of the trial, but understood he resided in New York City, and that this was three or four years ago, perhaps two; the witness could not exactly tell. The defendant when on the stand had previously testified that for the last two years preceding the trial he lived in Jersey City. The question was then put by the defendant's counsel to the wit

ness, as follows:

"Now, I ask you again whether you can say what the general reputation of this defendant is as a law-abiding citizen in the neighborhood in which he lived at the time you came in fretioned?" quent contact with him, as you have men

It is to be observed that the inquiry is directed not to the reputation of the defendant as a law-abiding citizen in the com

"I want you people to go to the mills and Imunity in which he had been living for the want you people to advise the people to join past two years, but in a community where you in this strike. If they refuse, I want you he had lived two, three, or four years ago.

We think, under the circumstances, it be-, judice the error was harmless. It is to be came a matter which called for the exercise observed that the witness Tarella had alof sound judicial discretion whether or not to ready answered on cross-examination withpermit the witness to testify as to the repu-out objection being interposed that she had tation of the defendant as a' law-abiding cit-been picketing and was still doing it. We izen in New York City two, three, or four are therefore unable to perceive how the years ago. question whether she had been arrested for picketing and her answer that she had been three times was harmful to the defendant. The fact that she had been arrested for picketing did not aggravate the fact that she had been picketing. The fact that she had been picketing for the strikers was a matter to be considered by the jury as to her bias or interest in the case. The bias or interest of the witness rested wholly upon her admission that she had been and still was doing picket duty.

A different situation might have been presented if counsel had offered to show a continuation of such good reputation up to the time of the finding of the indictment. But where there are two or more years immediately preceding the finding of the indictment during which the defendant lived in another community, and no proof is offered as to his reputation, as a law-abiding citizen, in that community, it then becomes a matter largely within the discretion of the court whether to admit such proof or not. This court, in Schuster v. State, 62 N. J. Law, 524, 41 Atl. 702, affirmed by the Court of Errors and Appeals, in 63 N. J. Law, 355, 46 Atl. 1101, said:

"The present reputation of a witness is all that is pertinent when he is impeached. Considerable range of time and place is permissible, but how wide a range is largely a matter of

discretion with the court."

From the cases where the question has arisen it appears that a greater latitude is allowed in the admission of evidence to sustain reputation than in admission of evidence to impeach it. 3 Encyc. of Ev. p. 33, and cases cited in note. But after a careful examination of the testimony of the witness leading up to the question which was excluded, we cannot say that there was an 'abuse of discretion by the court in excluding it.

The fact that she was arrested for it was wholly immaterial. It lent no force to the interest or bias that the witness might have had in the case by reason of her active participation with the strikers as a picket. The trial judge in his remarks overruling the defendant's objection evidently referred to the bias or prejudice or interest that the witness might have arising out of the fact that she was a picket. Clearly it cannot be said that because she said she was arrested for picketing that it affected her credibility in the eyes of the jury to any greater extent than her own admission that she has been, and still was, a picket.

[9] It is further argued that the trial judge erred in permitting the following questions to be asked of, and answered by, the defendant on his cross-examination, against his objections: "When you came here did you not advocate the doing away with all wage relations between capital and labor?" The witness answered that he did not. Counsel of defendant have not pointed out to us wherein the court erred, and, if so, that the defendant was harmed by such error. The other question was: "I am asking you wasn't that an event in your life?" The an

[8] From the record it appears that one Carrie Tarella, a witness sworn in behalf of the defendant, in her cross-examination by the prosecutor of the pleas was asked: "Q. Have you been arrested for picketing?" Objection was interposed by counsel of defendant, and in overruling the objection, the trial judge said: "It is a question for the jury to say whether this witness is biased or prej-swer was: "Well, it will depend upon the udiced or interested in giving her testimony." The witness then answered the question in the affirmative. The question undoubtedly was improper, and should have been excluded. But that does not lead to a reversal of the judgment, if it also appears that it was neither harmful nor prejudicial to the defendant.

outcome of the strike." The question put related to a matter brought out by the defendant on his direct examination, wherein he related his actings and doings, and described how he was arrested, etc. The question was proper cross-examination.

[10] Nor do we find any merit in the argument relating to the questions put to Mrs. Jones on cross-examination, and which were objected to by defendant's counsel as immaterial and irrelevant.

Under section 1 of the Evidence Act (2 C. S. p. 2217), a person offered as a witness may only be asked on cross-examination if he has been convicted of crime for the pur- The witness had been testifying on her pose of affecting his credibility. In Roop v. cross-examination as to the difference beState, 58 N. J. Law, 479, 34 Atl. 749, where, tween the principles espoused by the I. W. upon the trial of an indictment for keeping W. organization and those of the Socialistic a disorderly house, the defendant was per- Labor party without objection, and, when mitted to be asked upon cross-examination asked if they (both organizations) were workwhether he had not been indicted for keep-ing or representing labor in the uplift of ing a disorderly house at another place, it labor or to wipe out the relationship between was held error. capital and labor, the question was objected

We think, however, that in the case sub to upon the ground that it was immaterial