Larison v. State

• Decision Date: 24 May 1887
• Citation: 9 A. 700,49 N.J.L. 256
• Parties: LARISON v. STATE.
• Court: New Jersey Supreme Court

9 A. 700

49 N.J.L. 256

LARISON

v. STATE.

Supreme Court of New Jersey.

May 24, 1887.

(Syllabus by the Court.)

On writ of error to Hunterdon court of quarter sessions.

The plaintiff in error was convicted upon an indictment for willfully and wantonly sending and conveying to one Henrietta Conover, a female, an insulting, indecent, disgusting, offensive, and annoying letter and communication against her will and consent. The indictment was found under a statute approved March 29, 1878, entitled "An act to suppress the sending of indecent communications." P. L. 1878, p. 211. The statute is in these words: "That any person who shall willfully and wantonly send or convey to any female, against her will and consent, any insulting, indecent, lascivious, disgusting, offensive, or annoying letter or communication, without lawful purpose in sending or conveying the same, shall be deemed to have committed a public nuisance, and be liable to be punished as for a misdemeanor at common law."

R. S. Kuhl and A. A. Clark, for plaintiff in error.

R. P. Conkling and J. N, Voorhees, contra

DEPUE, J. The communication for sending which the accused was indicted, is set out in the indictment. It is insulting, indecent, disgusting, offensive, and annoying, and was sent without lawful purpose in sending the same. Error is assigned upon the form of the indictment. This objection was made in the court below by motion in arrest of judgment. The language of the statute is "send or convey." The indictment in this respect was technically defective. The words "send and convey" import a different mode of transmission. The principle adjudged in State v. Price, 11 N. J. Law, 203-215, does not apply. In that case an indictment under a statute making it an indictable offense to "burn, or cause to be burned," any building, which charged that the defendant did "burn, and caused to be burned," etc., was held to be good, for the reason that the expressions "burned, and caused to be burned," were neither incongruous nor inconsistent. But this defect in the indictment might have been cured by amendment. Revision, 275, § 43; Id. 277, § 53. An objection of this character, to be available, must be taken by demurrer or motion to quash before the jury is sworn. Revision, 277, § 53. It was not taken in this instance until after verdict rendered. Under these circumstances, the court would not reverse on this ground, especially as the defect was such as could not have prejudiced the defendant in maintaining his defense upon the merits. Revision, 284, § 89; State v. Robinson, 35 N. J. Law, 71; Connors v. State, 45 N. J. Law, 211; State v. Gedicke, 43 N. J. Law, 87.

The statute uses the words "letter or communication." The indictment describes it as "a letter and communication." This was also made a ground of the motion in arrest of judgment. The writing was inclosed in an envelope, and transmitted by mail. It might properly be called either a letter or a communication, and there is nothing incongruous or inconsistent in describing it as a letter and communication, for it was both. The objection is not tenable, and, if it were, it comes too late.

Exception was taken to the refusal of the court to charge that there was no evidence that the defendant did send or convey to Henrietta Conover the alleged writing or communication. To make the sending of such a communication indictable it must by the statute be sent to a female. The indictment charges that it was sent to Mrs. Conover. Proof that it was sent to her in a legal sense is necessary to sustain the conviction. The evidence tended to show that the communication was in the defendant's handwriting. It is prefaced by these words: "Soliloquy of Dame Conover, Princess Consort of the Conover Hell, in Conover Dale, near Copper Hill, Hunterdon Co., N. J." The communication contains indubitable evidence that the writer intended that it should be seen and read by Mrs. Conover. Every line of the writing evinces a fixed purpose to traduce, defame, and insult her. The purpose of the writer could be fulfilled only by his offensive epithets being brought to the knowledge of the object of his malignity. Mrs. Conover resided with her husband, at Copper Hill, near Ringoes. The communication was inclosed in a sealed envelope directed to the husband, David Con over, Copper Hill post-office. The envelope had on it the post-office stamp, "Lambertville, January 30, 1885." Jonathan Conover, a son living at home, got the letter from the post-office at Copper Hill. David Conover, the husband, was sick at home at that time. The son brought the letter home, and handed it to his mother. She opened it, and read it to the members of the household. Inclosed in the same envelope was another communication addressed, "To his Conovership, the Prince of the Conover Hell, near Copper Hill, Hunterdon Co., N. J., Greeting," and intended for the husband. It had affixed to it a postscript: "P. S. Please hand the enclosed paper to your consort, Dame Conover, the honored princess of your establishment." The writing on which the indictment was founded, was intended for Mrs. Conover. It was sent to her husband, with a request that it should be handed to her. It was received and read by her. Was the communication "sent to" her, within the meaning of the statute?

In Rex v. Wagstaff, Russ.& R.398, the indictment was on the statute 27 Geo. II. c. 15, for sending a threatening letter to Richard Dennis. The letter was directed to Richard Dennis, and was dropped by the prisoner in the yard of the residence of Dennis. It was picked up by the wife of the prosecutor, who first read the letter herself, and then read it to her husband. The judge instructed the jury that if the prisoner carried the letter and dropped it, "meaning that it should be conveyed to Dennis, and that he should be made acquainted with its contents," the letter was sent within the meaning of the statute. The conviction was sustained. The judges thought a letter dropped near the prosecutor, with intent that it might reach him, was a sending to him.

In Lloyd's Case, which was an indictment for sending a letter to one Salway demanding money, the prisoner dropped the letter in the vestry-room which Salway frequented every Sunday, from whence the sexton had picked it up and delivered it to him. Mr. Justice Yates, before whom the case was tried, reported to the court that "it seemed to him to be very immaterial whether the letter was sent directly to the prosecutor, or put into a more oblique course of conveyance, by which it might finally come to his hands." The court in banc expressed no opinion on this point, the judgment being arrested on another ground. 2 East, P. C. 1123.

In Rex v. Paddle, Russ. & R. 484, the indictment charged the prisoner with sending a letter to William Kirby, threatening to burn the house of one Rodwell, and the stacks of hay, corn, and grain of one Brook. Kirby received the letter by post, and it was communicated very soon after to Rodwell and Brook. It was objected that it was indispensably necessary that the indictment should charge the sending of a threatening letter to the party threatened; whereas it was stated in the indictment, and appeared upon the evidence, that the letter was sent to a stranger, who might have destroyed the letter without the party threatened knowing anything about it. The court in banc considered that the sending the letter to Kirby, as he was not threatened, was not within the statute, and on that account judgment was arrested,—manifestly on the ground of a defect in the indictment; but the court intimated that if Kirby had delivered it to Rodwell or Brook, and the jury should think that the prisoner intended he should so deliver it, that would be a sending by the prisoner to Rodwell or Brook, and would support a charge to that effect.

In Reg. v. Grimwade, 1 Denison, Cr. Cas. 31, reported also in 1 Car. & K. 502, the case was considered upon the second count of the indictment, which charged the prisoner with sending to one Brown a letter directed to Sir Joshua Rowley, threatening to burn the barn of Brown. At the trial it was proved that the letter was left by the prisoner at agate in the public road near Sir J. Rowley's house, directed to him as described in the indictment, and sealed. Having been found there by one of the...