State v. Cooper

• Decision Date: 15 January 1971
• Citation: 272 A.2d 557,113 N.J.Super. 34
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Herbert COOPER, Defendant-Appellant, and Joseph Moss, Carlton Hopps, Calvin Massey and Albert MacNeil, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 34

113 N.J.Super. 34

272 A.2d 557

STATE of New Jersey, Plaintiff-Respondent, v. Herbert COOPER, Defendant-Appellant and Joseph Moss, Carlton Hopps, Calvin Massey and Albert MacNeil, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Jan. 5, 1971.

Decided Jan. 15, 1971.

Harry D. Ambrose, Jr., Camden, Assigned Attorney, for appellant.

Charles A. Cohen, Asst. Prosecutor, for respondent (A. Donald Bigley, Prosecutor of Camden County, Attorney; Charles A. Cohen, Camden, on the brief).

Before Judges KILKENNY, HALPERN and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

Cooper appeals from judgments of conviction of inciting the unlawful burning of property belonging to Camden County (N.J.S.A. 2A:148--10, subd. a) and of aiding or assisting prisoners to escape from the Camden County Jail (N.J.S.A. 2A:104--7). He was sentenced to the New Jersey State Prison for consecutive terms of not less than 2 1/2 years nor more than 3 years and not less than 1 year nor more than 1 1/2 years.

The indictments were tried against Cooper and Hopps, who were prisoners at the Camden County Jail on February 17, 1969. On that date a riot occurred in the jail during which county property was burned and destroyed and during which three fellow prisoners escaped through a window.

There was testimony from which the jury could find the following facts. The jail, located on the sixth floor of the Administration Building, consisted of four cell blocks, A, B, C and D. Cooper was an inmate in block B. When the correction officer in charge opened the door to block B to pass in a bucket and a mop, Cooper forced his way out yelling to the other inmates to come out and that he was taking over the jail. Cooper, Hopps and another inmate took the keys away from the correction officer and opened the doors to the other cell blocks. The prisoners came out of the call blocks, broke tables in the dining area and set them on fire, broke windows and generally destroyed available property. The lock was broken from a window in block D through which the escape was made.

Both Cooper and Hopps testified in their own behalf denying that they were involved in inciting the riot or in the riot itself and further denying that they had anything to do with the destruction of county property.

Defendant's main contention on appeal is that the trial court erred in denying his motion for judgments of acquittal made at the conclusion of the State's case. The basis of the contention is that there was no direct evidence that he had participated in the destruction of county property or that he had physically and directly assisted the three prisoners to escape. He further argues that his motion should have been granted as to the violation of N.J.S.A. 2A:104--7 because there was no evidence from which the jury could find that he had a specific intent to assist the escape.

N.J.S.A. 2A:148--10 states in part:

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 * * *.

The actual destruction of public property need not occur to support a conviction for a violation of that statute. The essential element of the crime is incitement to destruction of property rather than the actual destruction of property. State v. Quinlan, 86 N.J.L. 120, 91 A. 111 (Sup.Ct.1914), aff'd o.b. 87 N.J.L. 333, 93 A. 1086 (E. & A. 1915).

Commonwealth v. Hayes, 205 Pa.Super. 338, 209 A.2d 38 (Super.Ct.1965), concerned a charge similar to what is before us. The court in dealing with an incitement to riot indictment stated:

Inciting to riot is not a statutory offense in Pennsylvania but it is a common law crime. 'Inciting to riot, from the very sense of the language used, means such a course of conduct, by the use of words, signs or language, or any other means by which one can be urged on to action, as would naturally lead, or urge other men to engage in or enter upon conduct which, if completed, would make a riot.' Commonwealth v. Merrick et al., 65 Pa.Super. 482 at 491, 209 A.2d at 39.

The acts of the defendant in pushing his way out of the cell block yelling to the other prisoners to come out and that he was taking over the jail and that he was going to 'break this place up' were sufficient to sustain a finding of guilty by the jury of a violation of N.J.S.A. 2A:148--10 subd. a. State v. Boyd, 86 N.J.L. 75, 80, 91 A. 586 (Sup.Ct.1914), aff'd o.b. 87 N.J.L. 328, 93 A. 599 (E. & A. 1915); Commonwealth v. Apriceno, 131 Pa.Super. 158, 198 A. 515 (Super.Ct.1938).

N.J.S.A. 2A:104--7 provides in part:

Any person who aids or assists a prisoner in any jail * * * to make or attempt to make his escape from any such institution * * * is guilty of a misdemeanor.

To be guilty of this provision it is not necessary to show that a defendant actually participated in an escape or that he intended to aid an escape. The State need not allege or prove a specific intent.

In People v. Vraniak, 5 Ill.2d 384, 125 N.E.2d 513 (Sup.Ct.1955), cert. den. 349 U.S. 963, 75 S.Ct. 895, 99 L.Ed. 1285 (1955), the court in construing a similar statute held that 'intent was not a material element of the crime and need not have been alleged.' 125 N.E.2d at 517. In a later Habeas corpus proceeding, United States ex rel. Vraniak v. Randolph, 261 F.2d 234 (7 Cir. 1958), cert. den. 359 U.S. 949, 79 S.Ct. 733, 3 L.Ed.2d 681 (1959), the Circuit Court of Appeals agreed with the Illinois Supreme Court's analysis of the statute there involved, stating The general rule is that, to constitute a crime, the act must (except in cases of Malum prohibitum, which is irrelevant here) be accompanied by a criminal intent. 22 C.J.S. Criminal Law §§ 29, 30, pp. 84, 86. The exception to the general rule is where a specific intent is an element of a crime, in which case the specific intent must be proved as an independent fact and cannot be presumed from the commission of the unlawful act. 22 C.J.S. Criminal Law § 32, p. 91. Under the general rule, the intent to commit crime may be implied from the established facts. The...