*

the phrase or word used. We think, therefore, that the indictment is defective in failing to define the political party in the language of the statute as one which had, at an election for members of the General Assembly next preceding the holding of the primary, polled for members to the General Assembly at least 5 per cent. of the whole number of votes cast in the district in which and for which the nominations were made.

place within the sald election district provid- formed which meaning is to be attributed to ed for by law, well knowing the said Joseph Torrello not to be a qualified voter in the said election district at the primary meeting and election aforesaid to be held as aforesaid, and not to be by law entitled to vote therein and thereat, by reason that he did not legally reside within the said election district," and, continuing, charging certain other overt acts done in pursuance of said conspiracy, and then charges "that in pursuance of and according to said conspiracy, combination, confederacy, and agreement between themselves had as aforesaid," and to enable "the said nonqualified voters to vote at said primary election, the defendants did unlawfully, willfully, and corruptly counsel, aid, advise, assist, and abet the said Joseph Torrello in voting in the name of Joseph White, ** by then and there unlawfully, willfully, and corruptly counseling, aiding, advising, assisting, and abetting the said Joseph Torrello to appear in person before the board of registry and election of the election district aforesaid, and to knowingly and falsely pretend and represent that his name was Joseph White, * and that he, the said Joseph Torrello, in the name of Joseph White, was entitled to the right of suffrage in the election district aforesaid at the primary meeting and election aforesaid," and further

charges that thereby he was falsely registered under the name of Joseph White, and that after such registry he "did give in and cast his vote at the primary meeting and election aforesaid in the name of Joseph White, well knowing himself not to be a resident and qualified voter of the said election district at the said primary meeting."

The primary law is concerned simply with providing a method for the selection of persons to be voted for at a public election. This was unknown to the common law, and rests entirely upon the statute by which it was created and defined. State v. Woodruff, 68 N. J. Law, 89, 52 Atl. 294. This indictment fails to state that there was held a primary meeting by a party which had, at an election for members of the General Assembly next preceding the holding of a primary, polled for members of the General Assembly at least 5 per cent. of the whole number of votes cast in the district in which and for which nominations were made. It does state that such primary election was held by a "certain political party of this state, to wit, the Democratic party." This is uncertain and equivocal. It may mean a political party such as is popularly known as the Democratic party, or it may mean a definite political organization, such as the act concerning elections defines. This at once presents a situation where it is essential in an indictment that the court and the defendant should be in

The crime charged is a purely statutory one, and the indictment should charge with certainty and precision all matters in which the illegality consists, where the act per se is not unlawful. To vote at a primary election held by a political party or organization not within the terms of the act would manifestly not be illegal, for such party could not hold an effective primary. The charge must go further, and set out that the primary was held by a political organization defined by the statute. The statutory offense is voting at a primary held by a political party which casts at least 5 per cent. of the total vote at the next previous election for members of the General Assembly, and under authority of Roberson v. Lambertville, 38 N. J. Law, 69, the description of the crime must in all respects correspond with the statute.

Nor is this view overcome by the argument advanced by the state that the court is informed of the fact that the Democratic party had, at an election preceding the primary, polled more than 5 per cent. of all the votes cast, because by section 108 of the act of 1898 (P. L. p. 291) the board of county canvassers is charged with making two statements of the result of the election, and by section 110 such board must deliver one of these statements to the Secretary of State, who is charged with filing the same, whereby it will be apparent whether or not the Democratic party was qualified to hold a primary; the court taking judicial notice of the archives of the Secretary of State. Upon turning to section 108 it is apparent, from the form of certificate there given, that the political party of the candidates voted for is nowhere mentioned or required to be mentioned in such statement. But, if it be conceded that the court would take judicial notice of such return as a matter of proof, assuming that such return did contain the political faith of the persons certified to have been voted for, yet it does not follow that the indictment should not set forth that the politi cal party was of the Constitution prescribed by the statute.

For this reason, therefore, the indictment should be quashed. This conclusion renders it unnecessary to examine the other points made by counsel for the defendants.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 337; Dec. Dig. § 312.*] 4. ELECTIONS (§ 312*)-VIOLATIONS OF ELEC-trict, and that he was entitled to the right TION LAWS-FALSE REGISTRATION-JOINT OR SEVERAL.

titled to vote therein, ty of a misdemeanor."

It is first charged that the indictment is faulty in failing to set out facts to show that the district was a legally constituted election district. We think that the statement of the number of the district and the ward within which it lies was sufficient.

shall be guil- if several defendants act in concert together, though the pretense be conveyed by words spoken by one of them, yet they may be all jointly indicted under the statute. * * * So where several are jointly concerned in the publication of the same libel.'" 1 Bish. Cr. Pro. p. 467 et seq. See, also, 2 Bish. Cr. Pro. p. 811. So if two or more persons should together visit another whom they knew to be not entitled to vote, and one of the visitors should offer money to the person visited to induce him to register as a voter, or should counsel that person to register as a voter, and it appeared that each visitor had contributed to the offered bribe, or each visitor joined in giving their approval to the words and acts of their spokesman and leader employed to induce the person to falsely register, in such a situation each would be indictable for the specific act, and thus all would be jointly indictable. We think, therefore, that there may be a joint counseling, aiding, and procuring, and that, therefore, the charge of these four defendants in one indictment is permissible.

It is insisted that there is no statement that the false registration was made with the intention to vote at the alleged general election. It is sufficient to say that such intention is not a part of the defined statutory offense. The statute makes the misdemeanor complete when the defendant willfully aids and assists in the registration of a person not qualified to vote, knowing of his disqualification.

one for an offense committed by them jointly, it need not employ the word "jointly" in describing the offense. 1 Bish. Cr. Pro. p. 471.

Again, it is insisted that the clause in paragraph 2 of the act of 1905, supra, only includes instances where the influence is to be exercised upon the members of the board of registry directly, by inducing them to place fraudulent names upon the list, as, for instance, by presenting to the board of registry an affidavit of persons who have not It is to be further remarked that, when the been registered as persons who are entitled | indictment is against more defendants than to be registered and to vote in the district. It is therefore insisted that merely advising a person to register his name, knowing him to be disentitled to vote, is not within the language of the statute. We think differently. We think the counseling and procuring of the registration of the name of any other person on a register includes the persuading of the person to personate another voter, or to do any act which may result in the registration of a name not entitled to vote. The procuration need not directly affect the board of registration; but if it puts in motion an act operating either upon the voter or upon the board, which results in getting a false name upon the registry list, it is within the

act.

The last objection pressed is that the statutory offense is distinct in its nature, and that a single act is incapable of being committed by more than one person. It is insisted, therefore, that the conviction of these defendants jointly is a legal impossibility. The question is, can two or more persons willfully counsel, procure, aid, advise, assist. or abet in the false registration of a name? Says Mr. Bishop: "The test to determine whether an offense may be deemed joint or not, has been stated by an American judge (Robertson, C. J., in Com. v. McChord, 2 Dana [Ky.] 242) as follows: 'It is to consider whether each offender be guilty in the same degree of the same crime so that he might be separately convicted, even though another was the actual perpetrator. If each may be so convicted, their guilt is joint; but otherwise, it is several.'" Mr. Bishop continued: ""Thus,' says Mr. Starkie, 'in a case of obtaining money under false pretenses,

The application is overruled.

(77 N. J. L. 84)

STATE v. NUGENT et al.

(Supreme Court of New Jersey. Nov. 9, 1908.) 1. CONSPIRACY (§ 43*) - ELECTION FRAUDS INDICTMENT-SUFFICIENCY.

An indictment charging that defendants unlawfully combined, united, confederated, conspired, and bound themselves to procure another to vote at a general election, knowing that he was not qualified, is not open to the objection that the words employed are not apt to charge a criminal conspiracy, because the words "the dedo not necessarily import that the agreement fendants did bind themselves by an agreement" was between themselves, but leave open the possibility that the agreement might have been between each defendant and some third person. Cent. Dig. §§ 87, 91; Dec. Dig. § 43.*] [Ed. Note.-For other cases, see Conspiracy. 2. INDICTMENT AND INFORMATION (§ 110*)— CONSPIRACY-ELECTION FRAUDS-LANGUAGE OF STATUTE.

The indictment is not open to the objection language of Crimes Act (P. L. 1898, p. 805) § 37, for the further reason that it is couched in the as amended by Act March 22, 1899 (P. L. 1899, p. 214), which section does not merely indicate the punishment for a crime known to the common law, but defines the crime itself.

[Ed. Note. For other cases, see Indictment and Information, Dec. Dig. § 110.*] 3. CONSPIRACY (§ 43*) — ELECTION FRAUDS — INDICTMENT-SUFFICIENCY.

An indictment charging a conspiracy to procure disqualified persons to vote, and to proelection district and to vote under names other cure qualified persons to vote in more than one than their own at a general election, but spe

cifically charging a conspiracy to procure a cer-
tain person to vote in a certain election district
in a certain county, fixes the place where the
purpose of the conspiracy was to be executed.
[Ed. Note.-For other cases, see Conspiracy,
Dec. Dig. § 43.*]

4. CRIMINAL LAW (§ 97*)-CONSPIRACY-JU-
RISDICTION.

So far as concerns jurisdiction, the question is as to where a conspiracy was entered into, and not where its purpose was to be executed.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 97.*]

5. CONSPIRACY (§ 34*)-FRAUDULENT VOTING "PERVERSION OR OBSTRUCTION OF THE DUE ADMINISTRATION OF LAW."

Fraudulent voting at an election, whether consisting of voting disqualified persons, repeating, or voting under the names of other voters, is a "perversion or obstruction of the due administration of law," which by Crimes Act (P. L. 1898, p. 805) § 37. as amended by Act March 22, 1899 (P. L. 1899, p. 214), is made the subject of a criminal conspiracy.

[Ed. Note. For other cases, see Conspiracy, Dec. Dig. § 34.*]

6. CONSPIRACY (§ 43*) — INDICTMENT-SUFFI

CIENCY.

An indictment charging specific facts bringing defendants within Crimes Act (P. L. 1898, p. 805) § 37, as amended by Act March 22, 1899 (P. L. 1899, p. 214), making persons who shall combine to commit any act for the perversion or obstruction of the due administration of the law guilty of a misdemeanor, and charging them so as to inform defendants with absolute certainty of the character and nature of the offense, is sufficient, though not charging that defendants conspired to commit an act for the perversion or obstruction of the due administration of the law.

[Ed. Note.-For other cases, see Conspiracy, Cent. Dig. 91; Dec. Dig. § 43.*]

11. ELECTIONS (8 328*)-VIOLATION OF ELECTION LAWS-INDICTMENT-SUFFICIENCY.

A description of the election district by number and ward in an indictment alleging a design to procure a fraudulent vote therein was sufficiently certain, without setting out the boundaries of the district.

[Ed. Note.-For other cases, see Elections, Dec. Dig. 328.*]

12. INDICTMENT AND INFORMATION (§ 125*)— MULTIFARIOUSNESS.

An indictment for conspiracy is not multifarious because charging a design having a mul titude of objects.

[Ed. Note. For other cases, see Indictment and Information, Dec. Dig. § 125.*]

Application for certiorari to review an indictment of James R. Nugent and others, charging a conspiracy to procure a person to vote at a general election, well knowing that he was not a qualified voter. Application overruled.

Argued June term, 1908, before REED,
BERGEN, and VOORHEES, JJ.
Samuel Kalisch, for applicants. Louis
Hood, for the State.

REED, J. The indictment in question charges that the defendants did unlawfully and wickedly combine, unite, confederate, conspire, and bind themselves by agreement to unlawfully and corruptly procure one W. B. to vote at a specified general election in the Sixth election district of the Second ward of the city of Newark, well knowing the said W. B. not to be a qualified voter in said election district at that election.

It is insisted that, regardless of other objections to the indictment, the words em7. CONSPIRACY (§ 27*)-FAILURE TO ACCOM-ployed are not apt to charge a criminal con

PLISH PURPOSE-EFFECT.

Where there is a design to procure a disqualified person to vote, followed by an overt act in pursuance of that design, the conspiracy is complete, though its purpose fail and the person does not actually vote.

[Ed. Note.-For other cases, see Conspiracy, Cent. Dig. § 39; Dec. Dig. § 27.*] 8. CONSPIRACY (§ 27*)-OVERT ACT.

The fact that there is a distinct statutory provision for punishing the counseling of false registration or false voting in no way impairs the charge of a conspiracy to procure a disqualified person to vote, and the charge of procuring such person to register as the overt act in pursuance of such conspiracy, as counseling by a single person is quite distinct from the combined counseling of several persons. [Ed. Note. For other cases, see Conspiracy, Dec. Dig. 27.*]

spiracy. The alleged defect pointed out is that the words "the defendants did bind themselves by an agreement" do not necessarily import that the agreement was between themselves, but leave open the possibility that the agreement might have been between each defendant and some third person or persons. There is no doubt that the forms in indictments for conspiracy contain the charge that the defendants did agree together, or that the defendants did among themselves conspire and agree together; but it seems impossible to ascribe to the other words, "combine, confederate, conspire," any meaning other than that the defendants mutually engaged to accomplish the purposes charged. When it is said that A. and B. confederated or conspired to do an act, the words seem to have a well-defined significance. The etymological, technical, and popular significance of these words, when predicated of two or more persons, is that they reciprocally will to assist in a common enterprise; and the enterprise being common, and the will of all the defendants being common, the agreement was common and between each and all of the defendants. This [Ed. Note.-For other cases, see Indictment and is the equivalent for agreeing together to perInformation, Cent. Dig. § 183; Dec. Dig. § 61.*] | form the act. Besides, the charge is couched

9. CONSPIRACY (§ 27*)-OVERT ACT.

Aiding and abetting in the false registration of a person is a sufficient overt act in execution of a conspiracy to have such person fraudulently

vote at the following election.

[Ed. Note. For other cases, see Conspiracy, Dec. Dig. § 27.*]

10. INDICTMENT AND INFORMATION (8 61*)EVIDENCE-JUDICIAL NOTICE.

Whether the court will take judicial notice of the location of an election district is a question of evidence, and not of pleading.

in the language of section 37 of the crimes | 33, excludes any matter as the subject for a act (P. L. 1898, p. 805), as amended by the act of 1899 (P. L. 1899, p. 214). This section does not merely indicate the punishment for a crime known to common law, but defines the crime itself. I therefore think the statement of conspiracy, from the point of view in which it is attacked, is sufficient.

criminal conspiracy save those pointed out in the statute, yet the matters included within this statute are not confined to a combination to commit a crime. One of the purposes, a combination to effect which is a conspiracy, is, in the language of this section, "a design to commit an act for the perversion or obstrucIt is again insisted that the indictment does tion of justice or the due administration of not show that the defendants conspired to the laws." Now the fraudulent voting at an commit a crime in the county of Essex. As- election, whether in the shape of voting dissuming that such a charge was essential un-qualified persons, repeating, or voting upon der the statute, it nevertheless appears in the the names of other voters, is a perversion or indictment. The general purpose of the con- obstruction of the due administration of law. spiracy as set out was to procure disqualified It is as palpably so as was the tampering with persons to vote, and to procure qualified per- ballot boxes, dealt with in the case of Mossons to vote in more than one election dis- chell v. State, 53 N. J. Law, 498, 22 Atl. 50, trict and to vote upon names other than their affirmed 54 N. J. Law, 390, 25 Atl. 964. In own upon a general election held in this state that case an indictment for conspiracy was on a certain date; but the specific charge is sustained upon these grounds. Therefore it that they conspired to procure a certain per- would not matter whether these acts of fraudson to vote in a certain election district in ulent voting were criminal or penal acts, or Essex county. This fixes the place where the neither criminal nor penal. They were in any purpose of the conspiracy was to be executed. aspect perversive of the due administration But the real point, so far as concerns jurisdic- of the law. It is true that the instrument tion, is, where was the conspiracy entered in- does not charge that the defendants conto? Dealy v. U. S., 152 U. S. 539, 14 Sup. Ct.spired to commit an act for the perversion or 680, 38 L. Ed. 545. And the indictment obstruction of justice or the due administracharges it to have been in the county of Es

sex.

tion of the law. But it does charge specific facts which bring the defendants within the ban of the statutory language, and charges those facts so as to inform them with absolute certainty of the character and nature of the specific charge, and this was all that was requisite. State v. Thatcher, 35 N. J. Law,

But it is said that it is not charged that the conspiracy was to commit a crime, and that, as the crime of conspiracy is limited by section 37 of the act concerning crimes as that section was amended in 1899 (P. L. 1899, p. 214), the only ground upon which this indict-445; State v. Startup, 39 N. J. Law, 423. ment can stand is that the purpose to be accomplished by the conspiracy was the commission of a crime; and it is insisted that, while the purposes to be accomplished were crimes under section 2 of the act of 1905 (P. L. 1905, p. 224), yet that section has been repealed by a later act in 1905 (P. L. 1905, p. 402), the thirty-fifth section of which later act, it is insisted, provides for the sole punishment of acts which under the previous acts were crimes; the punishment being a penalty to be recovered in a civil action. It is to be observed that the legislation contained in section 35 of the later act seems to be entirely aside from the purpose indicated in the title of the act. The purchase of voting machines, and the regulation of the use of voting machines, can hardly be said to express a purpose to legislate for the punishment of illegal voting, which punishment has always been provided for in the crimes act or in the act to regulate elections.

But the question of repealer is unimportant. It is unimportant because the assumption that the indictment is valid only if it charges a design to commit crime is untenable. Assuming, for the purpose of defend ants' argument, that section 37 of the crimes act (P. L. 1898, p. 805), as amended in 1899 (P. L. 1899, p. 214), covers the whole field of criminal conspiracy, and that this section, not

Again, it is insisted that no overt act is properly pleaded. The overt acts pleaded are that the defendants in pursuance of their conspiracy aided and abetted the disqualified persons whom they had conspired to have vote to falsely register their names or the names of others on a certain registry list as persons qualified to vote. It is first said that there is no charge that such persons voted or offered to vote; and, secondly, that there is a distinct statutory provision for punishing a person who shall counsel the registration of any name of any person knowing him not to be entitled to a vote, and there is also a distinct provision for punishing any one who shall counsel a person to vote on election day. In the first place, the act which the defendants conspired to effect need not be accomplished. If there was a design to procure a disqualified person to vote, followed by an overt act in pursuance of that design, the conspiracy was complete, although for some reason its purpose failed and the person did not actually vote. Secondly, the fact that there is a provision for punishing the counseling to false registration, or counseling to false voting, in no way impairs the charge of a conspiracy to procure a disqualified person to vote, and the charge of procuring such person to register as an overt act. Indeed, is may be observed that counseling by a single person is quite distinct