State v. Cappon

Decision Date22 December 1971
PartiesSTATE of New Jersey, Plaintiff, v. Adrian CAPPON, Defendant. (Criminal)
CourtNew Jersey Superior Court

Joseph P. Lordi, Prosecutor of Essex County, for State (Michael A. Petrolle, Asst. Prosecutor, appearing).

Nadine Taub, Newark, for defendant (Stuart Ball, Orange, appearing).

MEHLER, J.S.C.

Defendant, who has been indicted for an alleged violation of N.J.S.A. 2A:148--10(b), has moved to declare the statute unconstitutional on its face and to dismiss the indictment as one founded on a void statute. More specifically, he contends that the statute violates the First and Fourteenth Amendments in that it is vague and over-broad.

N.J.S.A. 2A:148--10 provides as follows:--

Any person who, in public or private, by speech, writing, printing or otherwise, advocates, encourages, justifies, praises or incites:

a. The unlawful burning or destruction of public or private property; or

b. Assaults upon any of the armed forces of the United States, the national guard, or the police force of this or any other state or of any municipality; or

c. The killing or injuring of any class or body of persons, or of any individual--

Is guilty of a high misdemeanor.

The indictment charges that defendant, on or about July 19, 1970, at the City of Newark, did in public, by speech, advocate or encourage assaults on two named police officers, contrary to N.J.S.A. 2A:148--10(b).

Defendant contends that the statute is void for vagueness because it is susceptible of sweeping and improper application, furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials against particular groups deemed to merit their displeasure, and implicates First Amendment freedoms, since one must guess what conduct or utterances may be punishable. He argues that a vague statute must be declared void because under it the selection of violators will necessarily be arbitrary and based on the personal view of the arresting officer or the philosophy of the court hearing the case and, touching the area of First Amendment activity, a vague statute such as N.J.S.A. 2A:148--10(b), creates a 'chilling effect' upon the exercise of First Amendment freedoms by members of the community who oppose the police or their policy.

Defendant's claim of overbreadth is grounded on his view that the statute and indictment sweep far beyond the scope of legitimate governmental regulation into the area of pure speech and thought control. In short, he says that the statute bears the hallmark of a police state. Defendant's final claim is that a statute with all these defects cannot be saved by judicial reconstruction.

Defendant has submitted no statement of facts. It is the position of his counsel that under any conceivable set of facts the statute must be deemed unconstitutional, and that for the purpose of the motion he accepts as true the State's statement of facts. According to a statement provided by the State, the incident out of which the indictment arose occurred during a Puerto Rican Day parade on July 19, 1970, in the vicinity of Newark City Hall. It is contended that as the parade was coming to an end a group of young men who had bottles and bricks at their disposal had reached the area in front of Newark City Hall. Defendant, who was standing among them, began to call to the others in the group, and when he said, 'Get those mother fuckers,' bricks and bottles began to be hurled at Newark police officers from the area in which defendant was calling, and two police officers were struck by the missiles.

The forerunner of N.J.S.A. 2A:148--10, which was identical in substance with it but slightly dissimilar in form withstood constitutional attack and was held valid by the old Supreme Court and the Court of Errors and Appeals in State v. Quinlan, 86 N.J.L. 120, 91 A. 111 (Sup.Ct.1914), and State v. Boyd, 86 N.J.L. 75, 91 A. 586 (Sup.Ct.1914), aff'd o.b. 87 N.J.L. 328, 93 A. 599 (E. & A.1915).

In Quinlan, where the indictment charged that defendant, in public, by speech, advocated, encouraged and incited persons to injure nonstrikers, it was argued that the indictment was ineffective to charge a crime because the statute on which it was based violated the State Constitution in that the statute was uncertain in describing the offense and was therefore void. It was also contended that only the Legislature had the power to define what shall constitute an offense; that this power could not be delegated to a jury, and that under the statute it was left to the jury to determine what was meant by the words 'advocate, encourage, justify, praise, or incite' etc. In Boyd, where the indictments charged that defendant, by speech, advocated, encouraged and incited strikers to destroy private property by means of sabotage, it was argued that the statute, as construed, was unconstitutional as in conflict with the First, Sixth and Fourteenth Amendments.

Since this court is bound by Quinlan and Boyd, and the arguments for the reversal of these precedents are properly presentable to courts higher than this court, Franco v. Davis, 51 N.J. 237, 238, 239 A.2d 1 (1965), it would ordinarily follow that they should be made to those courts and not considered by this court. However, because more than 50 years have passed since Quinlan and Boyd were decided, much has since been written on the matter under consideration and defendant's arguments differ in some respects from those advanced in Quinlan and Boyd, this court does not deem it inappropriate to consider defendant's contentions.

Defendant's position and contentions make it plain that he is seeking a declaration that the statute is vague or overly broad on its face and not as construed and applied to him on the facts of this case. A threshold question which therefore arises is whether defendant may challenge the constitutionality of the statute on its face or whether he is limited to challenging it as construed and applied to him.

Not all speech has First Amendment protection. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (concurring opinion by Douglas, J., 401 U.S. at 74, 91 S.Ct. at 768, 27 L.Ed.2d at 695).

In DeJonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278, 284 (1937), the court, referring to First Amendment rights, said:

These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their Legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse.

In Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the court noted that more recent decisions 'have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' (395 U.S. at 447, 89 S.Ct. at 1829, 23 L.Ed.2d at 434.)

In State v. Smith, 46 N.J. 510, 517, 218 A.2d 147, 150 (1966), cert. den. 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71 (1966), where defendant disrupted a public meeting of the governing body of the City of Trenton and threatened even greater destruction, the court, saying that there must be order at such meeting, held that it 'is frivolous to suggest the First Amendment stands in the way of that imperative.'

Boyd held to the same effect as these cases. The court there said:

The fundamental answer to the point raised is that free speech does not mean unbridled license of speech, and that language tending to the violation of the rights of personal security and private property, and toward breaches of the public peace, is an abuse of the right of free speech, for which, by the very constitutional language invoked, the utterer is responsible. Incitement to the commission of a crime is a misdemeanor at common law, whether the crime advocated be actually committed or not. (State v. Quinlan, Supra); and this (by the weight of authority) whether the crime advocated be a felony or a misdemeanor (12 Cyc. 182, and cases cited). That the right of free speech is not unlimited is well settled. (86 N.J.L. at 78, 91 A. at 587)

When a defendant raises the issues of vagueness, overbreadth or free speech, there is at times a question of standing. Ordinarily, one to whom application of a statute is constitutional may not claim the rights of others who may be affected by the statute in question. This rule was well stated in United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524, 529 (1960). There the Supreme Court reversed a District Court holding that a portion of the 1957 Civil Rights Act was unconstitutional merely on the ground that it was susceptible of application beyond the scope permissible under the Fifteenth Amendment. In so doing the court pointed particularly to the long established rule that

* * * one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. (Citing numerous cases). In Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, this Court developed various reasons for this rule. Very significant is the incontrovertible proposition that it 'would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.' Id., 346 U.S. at page 256, 73 S.Ct. at page 1035. The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined. The Court further pointed to the fact that a limiting...

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6 cases
  • State v. Morales
    • United States
    • New Jersey Superior Court
    • 10 novembre 1987
    ...to mount a constitutional attack where it may readily, as to the proponent, be held to be constitutional. State v. Cappon, 118 N.J.Super. 9, 285 A.2d 287 (Law Div.1971). As the Appellate Division has held: The void-for-vagueness doctrine requires that a penal statute define the criminal off......
  • State v. Leary
    • United States
    • Connecticut Superior Court
    • 27 septembre 1989
    ...The New Jersey courts have upheld a substantially similar statute against a first amendment vagueness challenge. 5 State v. Cappon, 118 N.J. Super. 9, 285 A.2d 287 (1971); State v. Hopson, 109 N.J.Super. 382, 263 A.2d 205 (1970), aff'd, 119 N.J.Super. 84, 290 A.2d 295 (1972). Hopson is part......
  • State v. Jones
    • United States
    • New Jersey Superior Court — Appellate Division
    • 29 janvier 1985
    ...doing so, where the attack is mounted by one as to whom the statute may readily be held to be constitutional." State v. Cappon, 118 N.J.Super. 9, 21, 285 A.2d 287 (Law Div.1971). Applying these principles, we harbor serious reservations with respect to whether the issues ultimately determin......
  • State v. Hopson
    • United States
    • New Jersey Superior Court — Appellate Division
    • 28 avril 1972
    ...by the Ohio courts that would bring it within constitutionally permissible limits. Hence, as observed in State v. Cappon, 118 N.J.Super. 9, 19, 285 A.2d 287, 293 (Law Div.1971), the Ohio statute in Brandenburg was held unconstitutional "by its own words and as applied (it) purports to punis......
  • Request a trial to view additional results

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