State v. Boyd
| Decision Date | 27 July 1914 |
| Citation | 91 A. 586,86 N.J.L. 75 |
| Parties | STATE v. BOYD. |
| Court | New Jersey Supreme Court |
Error to Court of Quarter Sessions, Passaic County.
Frederick Boyd was convicted of inciting to the destruction of property in violation of Crimes Act, pi. 5e (2 Comp. St. 1910, p. 1744, P. L. 1908, p. 577), and brings error. Affirmed.
Argued February term, 1914, before GUMMERE, C. J., and PARKER and KALISCH, JJ.
Henry Marelli and Gustav A. Hunziker, both of Paterson, and Gilbert E. Roe, of New York City, for plaintiff in error. Michael Dunn, Prosecutor of Pleas, of Paterson, for the State.
The defendant was Indicted under the statute of 1908, set out in 2 Compiled Statutes 1910 as section 5e of the Crimes Act, p. 1744, providing that any person who shall in public or private by speech, etc., advocate, encourage, justify, praise or incite the unlawful burning or destruction of public or private property, etc., shall be guilty of a high misdemeanor. There were two indictments, both of which charge that there was a public meeting during the strike of silk mill workers, and that at this meeting the accused did unlawfully and willfully and by speech advocate, encourage, and incite the said persons so assembled at said meeting to the unlawful destruction of private property situate in the city of Paterson. The indictments then go on to quote what the defendant said, and in both of them it is averred that he recommended the use by the strikers of what is called sabotage, consisting of injury to the material or to the machine on which they were employed. In the first indictment he recommended that they "put a kink into the warp" and "fix up a little something in the dye box." The second indictment alleges that he recommended the use of vinegar on the reeds, sandpaper on the spindle of silk, and a certain chemical in the dye box, all for the purpose of making the product unmerchantable, and preventing nonunion workers from doing their work.
The case is submitted on briefs. The first point made by the plaintiff in error is that the court did not have jurisdiction of the cases, in that, though the record proper shows that the defendant, after being indicted in the quarter sessions, waived trial by jury and was tried before the court of special sessions in due form as provided by the statute, the stenographic transcript and the judge's certificate, pursuant to section 136 of the Criminal Procedure Act, show that, instead of being tried in the special sessions before the court, the trial was had in the quarter sessions without a jury. This is alleged for error. Evidently the trial was conducted in the special sessions as stated in the record; and the stenographer's entry that it was in the quarter sessions, as well as the judge's certificate, are mere clerical errors, and could be amended; but if, in fact, the trial was in the quarter sessions, the case of State v. Stevens, 84 N. J. Law, 561, 87 Atl. 118, a decision by this court, is in point, and decisive against the present contention.
The second point is that the indictments do not charge the commission of any crime, in that the language quoted did not incite the destruction of property, but merely the injuring of property; but it appears by the evidence in the case that resort to the measures advocated by the defendant would result in the destruction of property, and we think there is no merit in this point, or in the point that the second indictment does not charge that the unlawful destruction of property was sought. The quoted language disposes of this claim.
It is also alleged that the indictments do not specify, nor does the evidence disclose, any owner of the property to be injured, or that there was any owner of it. The point might perhaps be material if it had been made at the proper time, but it was not. Section 44 of the Criminal Procedure Act provides that every objection to an indictment for form or substance apparent on its face shall be taken by demurrer or motion to quash, before the jury shall be sworn, and not afterwards; and our cases hold that an objection not so taken is barred thereafter. Mead v. State, 53 N. J. Law, 601, 23 Atl. 264; State v. Alderman, 81 N. J. Law, 549, 79 Atl. 283. There was a motion to quash, but an examination of the grounds then urged shows that the point now made was not specifically presented to the court. The general proposition was stated that the indictments failed to charge a...
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