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he did not consult a lawyer about the mat

(86 N. J. L. 120) ter, and was not advised until this suit was

STATE v. QUINLAN. brought. It appeared that the defendant

(Supreme Court of New Jersey. June 5, 1914.) wrote his wife that he would secure an apartment, and, at another time, that he 1. CRIMINAL LAW (8 13*) CREATION AND

DEFINITION OF OFFENSES. would secure quarters in a boarding house.

Crimes Act (2 Comp. St. 1910, p. 1744) 8 Her letters indicate an acquiescence in these 5e, making it a high misdemeanor to advocate, plans, which he then abandoned, saying he encourage, justify, or incite the killing or incould get neither the apartment nor the juring of any person or class of persons, is not

uncertain as leaving to the jury to determine hoarding house. He says the reason why what is meant by "advocate, encourage, justify, he could not get them was that when he praise, or incite." went to Hackensack to see his wife her talk (Ed. Note. For other cases, see Criminal was different from her letters. She also Law, Cent. Dig. $$ 13, 14; Dec. Dig. & 13.*] says that his talk was different from his let- 2. CRIMINAL LAW ($ 13*) CREATION AND ters, and so the parties did not resume mar

DEFINITION OF OFFENSES. ital relations. I am satisfied that, if the

That Crimes Act (2 Comp. St. 1910, p. 1744)

§ 5e, making it a high misdemeanor for any defendant was earning sufficient to enable person, in public or private, by speech, writthem 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 vocate, encourage, justify, praise, or incite the in somewhat inferior style, if there was any of persons, groups together various means by

killing or injuring of any individual or class certainty as to its continuance, this proceed which the end may be accomplished and makes ing would never have been brought.

any one of them an offense does not render She had lived hoping for the arrival of it uncertain and void. 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 (8 13*) CREATION AND

DEFINITION OF OFFENSES. son, Galen, in January or February, 1913,

Crimes Act (2 Comp. St. 1910, p. 1744) during which he, becoming incensed at not $ 5e, making it a high misdemeanor to advocate, being permitted, against the doctor's orders, encourage, justify, praise, or incite the killing to see his child, stopped sending her further or injuring of any individual or class of per

sons, is declaratory of the common law. moneys. When it is considered that this man

[Ed. Note.-For other cases, see Criminal for a whole year lived within a few miles Law, Cent. Dig. $$ 13, 14; Dec. Dig. § 13.*] of his child and did not make an effort to see him, it is plain that his conduct on this 4. CRIMINAL LAW ($ 45*)—SOLICITATION.

Under Crimes Act (2 Comp. St. 1910, p. occasion was absolutely unjustifiable, and 1744) § 5e, making it a high misdemeanor to was properly so looked upon by his wife. advocate, encourage, justify, praise, or incite This, to my mind, completely weaned her the killing or injuring of any individual or class love for him, and she then finally concluded son or class of persons were, in fact, killed or

of persons, it is immaterial whether any perto put into effect what for a long time was injured; the gravamen of the offensé being in inchoate in her mind, restrained only by the incitement or encouragement, and not in

the actual commission of the offense. her hope and love to seek a divorce. But I am unable to determine at what particular Law, Cent. Dig. 52; Dec. Dig. § 45.*]

[Ed. Note.-For other cases, see Criminal period it can be said that a desertion commenced. She consented to his leaving on 5. CRIMINAL LAW ($ 368*) — EVIDENCE — RES

GESTÆ. these various trips. She bought clothes for

Where, in a prosecution for advocating, enhim to go as manager on one of the trips. couraging, and inciting the injuring of a class Her letters, after his undertaking this latter of persons, the language used by accused at a trip, were substantially of the same tenor as public gathering was, “I make a motion that we

go to the silk mills; * no matter how before. There is nothing in the letters writ- we get them out, we got to get them out,” the ten by or to him during two years prior to court properly permitted the state to show as the filing of the petition, or even down to a part of the res gestæ that a speaker imme

diately preceding used this language: "I want the date of the filing of the petition, nor is you people to go to the mills, and I want you there anything in the testimony, as I read people to advise the people to join you in this it, which could, in any manner, be treated as strike.,, If they refuse, I want you to go into information to the defendant that the wife the mills. I want you to knock them out of the

the mills, and I want you to drive them out of demanded a resumption of marital relations. mills, even if it takes your extreme force.” These letters and the evidence indicate an [Ed. Note.-For other cases, see Criminal acquiescence in their living apart until he Law, Cent. Dig. 88 806, 812, 814, 815, 821; could earn enough to support her. Provost

Dec. Dig. 368.*] v. Provost, 71 N. J. Eq. 204, 63 Atl. 619, af. 6. CRIMINAL LAW (8 661*)—INCITING CRIME firmed 73 N. J. Eq. 418, 75 Atl. 1101; Foote

-ADMISSIBILITY OF EVIDENCE.

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 I am constrained to decree that the bill strikers did, in fact, disturb and injure the

strike breakers in a mill, evidence that the be dismissed.

strike breakers was properly admitted, though

*

•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 KALISCH, J. The plaintiff in error was to make out the offense.

convicted in the Passaic county quarter ses[Ed. Note. For other cases, see Criminal sions court on an indictment based upon Law, Cent. Dig. 88 758, 1606; Dec. Dig. $section 5e of the Crimes Act.(C. S. p. 1744), 661.*] 7. CRIMINAL LAW (8 377*)–EVIDENCE-GOOD which provides as follows: REPUTATION OF ACCUSED.

"Any person who shall, in public or private, It is within the discretion of the court by speech, writing, printing or by any other whether to permit a witness to testify as to ac- mode or means, advocate, encourage, justify, cused's good reputation three or four years pri- praise or incite the unlawful burning, destrucor to the finding of the indictment; there be- tion of public or private property or advocate, ing no offer by accused to show a continuation encourage, justify, praise and incite assaults of such good reputation.

upon the army of the United States, the Nation[Ed. Note. For other cases, see Criminal al Guard, or the police force of this or any Law, Cent. Dig. $$ 836, 837, 840; Dec.- Dig. ing or injuring of any class or body of persons,

other state or of any municipality, or the kill§ 377.*]

or of any individual shall be guilty of a high 8. CRIMINAL LAW (8 117012*) APPEAL misdemeanor." HARMLESS ERROR-EVIDENCE. In a prosecution for inciting the injuring

The legality of the judgment pronounced of a class of persons, though it was error under upon this conviction is brought up for reEvidence Act (2 Comp. St. 1910, p. 2217) § 1, view on a strict bill of exceptions and unproviding that a witness may only be asked on der the section 136 of the Criminal Procedure cross-examination if he has been convicted of crime to affect his credibility, to permit the Act. prosecutor to ask a witness for accused wheth The essential part of the indictment, the er she had ever been arrested for picketing, it validity of which is attacked by the plainwas harmless, as she had already answered without objection that she had been picketing tiff in error, reads as follows: and was still doing so.

"The said Patrick Quinlan did willfully and [Ed. Note. For other cases, see Criminal unlawfully in public by speech advocate, enLaw, Cent. Dig. 88 3129 3135; Dec. Dig. 8 courage, and incite the said persons só as117012.*]

sembled at said meeting to assault, beat, and

do injury to a certain class and body of persons 9. WITNESSES ($ 277*)-CROSS-EXAMINATION- residing in said city of Paterson, the township SCOPE AND EXTENT. In a prosecution for inciting strikers to in- who were silk operators employed in said silk

of Acquackanonk and the borough of Haledon, jure strike breakers, the court properly permit-mills in said different municipalities, in said ted accused to be asked on cross-examination : county, and who were not on strike; in that the "When you came here, did you not advocate said Patrick Quinlan aid then and there utter the doing away with all wage relations between and speak the following words: 'I make a mocapital and labor?"

tion that we go to the silk mills, parade through [Ed. Note. For other cases, see Witnesses, the streets, and club them out of the mills;.no Cent. Dig. $8 925, 979-983; Dec. Dig. $ 277.*] matter how we get them out, we got to get them 10. WITNESSES (8 372*)-IMPEACHMENT_IN-out-contrary to the form of the statute," etc. TEREST AND BIAS.

Before the jury was sworn the plaintiff in In a prosecution for inciting strikers to injure strike breakers, it was within the discre- error moved to quash the indictment upon tion of the court to permit the prosecutor to these grounds: (1) That the statute under ask one of accused's witnesses on cross-exami- which the indictment is found restrains and nation, as bearing on her interest and bias, con- abridges liberty of speech in violation of cerning her views on economic questions.

article 1 and section 5 of the state Constitu[Ed. Note.-For other cases, see Witnesses, Cent. Dig. $$ 1192–1199; Dec. Dig. § 372.*]

tion; (2) that the indictment does not set 11. INDICTMENT AND INFORMATION (8 125*) —

forth any offense against the statute on which JOINDER OF OFFENSES-DUPLICITY.

it is based; (3) that the language set forth The words "advocate," "encourage," "in- in the indictment which is charged to be cite." as used in Crimes Act (2 Comp. St. 1910, unlawful does not import the meaning atp. 1744) § 5e, making it a high misdemeanor to advocate, encourage, or incite the killing or in tributed to it or any meaning which is unjuring of persons, are cognate terms, and hence lawful. may be used in a single count of an indictment

The trial judge refused to quash the inwithout rendering it duplex.

[Ed. Note. For other cases, see Indictment dictment, and allowed the plaintiff in error and Information, Cent. Dig. $$ 334-400; Dec. an exception to his ruling. Dig. § 125.*]

[1] The first ground urged in the court be

low for quashing the indictment is not menError to Court of Quarter Sessions, Pas- tioned or argued here, and was apparently saic County.

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 and PARKER and KA

describing the offense, and therefore void. LISCH, JJ.

The argument builded on this head is that, Henry Marelli, and Hunziker & Randall, since the Legislature alone has the power to all of Paterson, for plaintiff in error. Mi- define what shall constitute a crime, it canchael Dunn, Prosecutor of the Pleas, of Pat- not delegate this power to a jury. It is erson, for the State.

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 Indexas

or

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 lawful justification, a pregnant woman to incite,” etc.

take some noxious thing, with intent to cause This contention is palpably unsound. A her miscarriage. It was objected that the plain reading of the statute makes it mani- indictment did not aver that the drug, medifest that it is not open to the attack leveled cine, or noxious thing advised to be taken against it. There is no organic law or rule or swallowed, was, in fact, taken or swallowof 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.

"The language of the enactment is: 'If any Moreover, we think the sense of the stat- person * maliciously or without lawful ute is clear. It denounces, as a high mis- the miscarriage of a woman then pregnant with

justification, with intent to cause and procure demeanor, the act of any person who, in pub- child, shall administer to ber, prescribe for her, lic or private, shall by speech, writing, print- or advise or direct her to take or swallow any

poison, drug, medicine, ing, or by any other mode or means advocate,

noxious thing

* such offender shall, on conviction encourage, justify, praise, or incite the kill- thereof, be adjudged guilty,' etc. The crime of ing or injuring of any class or body of per- which this defendant is convicted, as defined by sons or of any individual. The Legislature the statute, consists in advising, without lawful

justification, a pregnant woman to take some has in express terms defined what shall con- noxious thing, with intent to cause her miscarstitute an offense under the statute. Coun- riage. The actual taking or swallowing of the sel of plaintiff in error seem to have wholly drug, by the terms of the statute, constitutes no misconceived its purport. We are unable to the indictment falls clearly within the letter of

element of the crime. The offense charged in discern anything contained therein which the statute.” leaves it to a jury, as claimed by the plain

It is germane to the matter under discustiff in error, to determine what is meant by sion to observe here that the section of the “advocate," "encourage,” or “incite.”

Crimes Act on which the indictment in the This statute, like every other legislative case sub judice is founded is not an innovaact, is subject to judicial interpretation. tion upon, but declaratory of, the common When the occasion arises it will become the law. province of the court to determine what con- Stephen, in his Digest of Criminal Law stitutes in law an “incitement” or as the case (Ed. 1877) p. 33, says: may be, under the statute, and for the jury

Every one who incites any person to commit to determine the facts tending to establish any crime commits a misdemeanor, whether the a breach of the statute, under the law as de- crime is or is not committed." fined by the court.

The author's text is supported by Rex v. [2] The fact that the statute groups to- Higgins, 2 East, P. C. 5-22; Rex v. Scofield, gether various means by which the end may Cald. 397; Rex V. Plympton, 2 Lord Raybe accomplished and makes any one of them mond, 1378; Rex v. Vaughn, 4 Burr. 2499. an offense when done to attain the object In King v. Philipps, 6 East, Lord Ellenbordenounced by the act does not render suchough, in reviewing some of the cases above statute uncertain and void. Such legislation cited, on page 472 said: has received the sanction of a practice ex "And if the sending of the letter in the case tending back to time immemorial, and we of King v. Vaughan to solicit a party to comneed only refer to our crimes act in which dictable, I am at a loss to see why a letter sent

mit that misdemeanor were properly held inthere will be found numerous instances of to provoke and excite a person to the commislegislation of this sort from the earliest pe- sion of the offense in question is not equally so." riod in the history of this state, down to the The common-law doctrine is founded uppresent time, and among which may be on the principle that public policy requires meutioned statutes relating to arson, burn- that the solicitation or incitement to the ing, forgery, abortion, etc.

commission of an act which is injurious to [3, 4] But it is further insisted by counsel the public shall be punished as a criminal of plaintiff in error that the indictment fails offense. Thus in Regina v. Daniel, 1 Salk. to charge an offense within the contempla- page 381, where the defendant was indicted tion of the statute. The argument made on for enticing an apprentice from his master, this head is that, in order to charge a crime and was convicted, judgment was arrested within the purview of the statute, the indict- upon the ground "that this was a private inment must set out not only the uttering of jury for which case lies, and not in its nathe words which are alleged to advocate, en- ture public to maintain an indictment." courage, and incite the injury or killing of In the case of Regina v. Gregory, 1 L. R. the class or body of persons or of any in- C. Co., p. 75, it was held to be a misdemeandividual, but also that, as a result of such or to solicit and incite a servant to steal uttering of the words, there was a killing or his master's goods, though no other act was injury of a class or body of persons or of done except the soliciting and inciting. an individual.

Enough has been said upon this topic to This contention is unsound. In State v. demonstrate the fallacy of the contention of Murphy, 27 N. J. Law, 112, on page 113, the the plaintiff in error that the indictment does

91 A.-8

not charge a complete offense, because it to go into the mills and I want you to drive does not set out that there was a killing or them out of the mills. I want you to knock injuring of a class or body of persons or of them out of the mills, even if it takes your ex

treme force.” an individual. But, before leaving this top

It was following this that the defendant ic, it would be well to mention another po- made the motion in which he used the lantent reason against the claim made by the

guage set out in the indictment. We think plaintiff in error in this respect. Bearing

the testimony was properly admitted as a in mind the conditions under which the part of the res gestæ. It was clearly withstatute came into vitality, it lends force to in the issue, for the defendant was charged the view that the Legislature had the pur- with advocating, encouraging, and inciting pose to make the punishment for encourag- the injuring of a class of persons, and the ing, inciting, or advocating murder or as- testimony tended to show that he was parsault and battery more drastic than former- ticipating with Mrs. Jones in a common dely. It raised violations under the act from

sign to that end. 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 ted the state to introduce testimony against and limb, and deemed that these could be the defendant's objection as to what took best effected by making it a high misdemean- place at the “Miesch mill.” The “Miesch or for any one who shall, in public or pri- mill” was a silk mill. The workmen of that vate, by speech, etc., or by any other mode mill were on a strike, and strike breakers and means, advocate, encourage, or incite to had taken some of their places. We think such breaches of the law, irrespective of the the state assumed an unnecessary burden fact whether such breaches of the law ac- when it undertook to show that as a result of tually took place or not. The gravamen of the defendant's utterances the strikers went the statutory offense lies in the incitement to the “Miesch mill” and behaved in a riotous or encouragement to the commission of the

manner. The utterances ascribed to the deoffenses denounced, and not in the actual fendant were unambiguous. The sense in commission of them. The motion to quash which they were made and used needed no therefore was properly denied.

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 designed, 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

[7] Another ground relied on by the plainthe judgment. It appears that several wit- tiff in error for a reversal of the judgment nesses called by the state were permitted to is the exclusion by the court of testimony of testify, against the defendant's objection, as George Gordon Battle, offered by the defendto remarks made by Mrs. Jones immediately ant to prove his reputation as a law-abiding preceding a motion made by the defendant, citizen. On the preliminary examination of which motion was as follows:

this witness it appeared that he knew the “I make a motion that we go to the silk mills; defendant five or six years; that he did not no matter how we get them out, we got to get know where the defendant resided at the them out."

time of the trial, but understood he resided A reference to Mrs. Jones' remarks shows in New York City, and that this was three them to have been of an inflammatory char- or four years ago, perhaps two; the witness acter, but the argument made is that they could not exactly tell. The defendant when were irrelevant, incompetent, and immaterial, on the stand had previously testified that for because the issue before the court and jury the last two years preceding the trial he livwas whether the defendant at that time and ed in Jersey City. The question was then place uttered the language charged on the put by the defendant's counsel to the witindictment. It is further argued that her

ness, as follows: remarks were not part of the res gestä, since

“Now, I ask you again whether you can say it was not shown that they were made in what the general reputation of this defendant is furtherance of a common design, or that the as a law-abiding citizen in the neighborhood in defendant was in any way concerned in their which he lived at the time you came in fremaking. But this objection is fully answer quent contact with him, as you have men

?" ed by the language used by the defendant when he rounded out the peroration of Mrs. It is to be observed that the inquiry is Jones, as described by the state's witness directed not to the reputation of the de

fendant as a law-abiding citizen in the comTracey. Mrs. Jones said:

“I want you people to go to the mills and I munity 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 with. permit 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 A different situation might have been pre- picketing and her answer that she had been sented if counsel had offered to show a con- three times was harmful to the defendant. tinuation of such good reputation up to the The fact that she had been arrested for picktime of the finding of the indictment. But eting did not aggravate the fact that she had where there are two or more years imme- been picketing. The fact that she had been diately preceding the finding of the indict-picketing for the strikers was a matter to be ment during which the defendant lived in considered by the jury as to her bias or inanother community, and no proof is offered terest in the case. The bias or interest of as to his reputation, as a law-abiding citi- the witness rested wholly upon her admission zen, in that community, it then becomes a that she had been and still was doing picket matter largely within the discretion of the duty. court whether to admit such proof or not.

The fact that she was arrested for it was This court, in Schuster v. State, 62 N. J. wholly immaterial. It lent no force to the Law, 524, 41 Atl. 702, affirmed by the Court interest or bias that the witness might have of Errors and Appeals, in 63 N. J. Law, had in the case by reason of her active par355, 46 Atl. 1101, said:

ticipation with the strikers as a picket. The “The present reputation of a witness is all trial judge in his remarks overruling the dethat is pertinent when he is impeached. Con- fendant's objection evidently referred to the siderable range of time and place is permissible, bias or prejudice or interest that the witness but how wide a range is largely a matter of might have arising out of the fact that she discretion with the court."

was a picket. Clearly it cannot be said that From the cases where the question has because she said she was arrested for pickarisen it appears that a greater latitude is eting that it affected her credibility in the allowed in the admission of evidence to sus- eyes of the jury to any greater extent than tain reputation than in admission of evi- her own admission that she has been, and dence to impeach it. 3 Encyc. of Ev. p. 33, still was, a picket. and cases cited in note. But after a careful [9] It is further argued that the trial judge examination of the testimony of the witness erred in permitting the following questions leading up to the question which was exclud- to be asked of, and answered by, the defended, we cannot say that there was an 'abuse ant on his cross-examination, against his obof discretion by the court in excluding it. jections: “When you came here did you not

[8] From the record it appears that one 'advocate the doing away with all wage relaCarrie Tarella, 'a witness sworn in behalf of tions between capital and labor?” The witthe defendant, in her cross-examination by ness answered that he did not. Counsel the prosecutor of the pleas was asked: “Q. of defendant have not pointed out to us Have you been arrested for picketing?” Ob- wherein the court erred, and, if so, that jection was interposed by counsel of defend- the defendant was harmed by such error. ant, and in overruling the objection, the trial The other question was: "I am asking you judge said: "It is a question for the jury wasn't that an event in your life?" The anto say whether this witness is biased or prej- swer was: “Well, it will depend upon the udiced or interested in giving her testimo- outcome of the strike." The question put ny." The witness then answered the ques. related to a matter brought out by the detion in the affirmative. The question un- fendant on his direct examination, wherein doubtedly was improper, and should have he related his actings and doings, and debeen excluded. But that does not lead to a scribed how he was arrested, etc. The quesreversal of the judgment, if it also appears tion was proper cross-examination. that it was neither harmful nor prejudicial (10) Nor do we find any merit in the arguto the defendant.

ment relating to the questions put to Mrs. Under Section 1 of the Evidence Act (2 Jones on cross-examination, and which were C. S. p. 2217), a person offered as a witness objected to by defendant's counsel as immamay only be asked on cross-examination if terial and irrelevant. 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

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