State v. Gabriel

• Decision Date: 28 February 1921
• Citation: 112 A. 611
• Parties: STATE v. GABRIEL.
• Court: New Jersey Supreme Court

112 A. 611

STATE

v. GABRIEL.

Supreme Court of New Jersey.

Feb. 28, 1921.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Essex County.

Walter Gabriel was convicted of offenses, and he brings error. Reversed.

Argued November term, 1920, before GUMMERE, C. J., and BERGEN and KATZENBACH, JJ.

Ferdinand D. Masucci, of Newark, for plaintiff in error.

J. H. Harrison and John A. Bernhard, both of Newark, for the State.

BERGEN, J. The defendant was tried and convicted on two indictments, charging the violation of the provisions of sections 2 and 3 of the supplement to the Crimes Act approved February 13. 1918 (P. L. 130). The indictments are similar in form, except one charges the advocacy of the subversion of the government of the United States and of the state of New Jersey, and the other that the defendant was a member of a society formed to encourage hostility to the government of the United States and of the state. With the consent of the defendant the two indictments were tried before the same jury, but the convictions and judgments ware separate. Only one writ of error is printed in the record, and that removes the judgment on the indictment relating to the subversion, by advocacy, of the federal and state governments, but the return thereto contains both indictments and judgments, which were argued at the same time without objection to the form of the printed record.

One indictment charges in the first count that defendant "did willfully, knowingly, and unlawfully advocate in public by speech, the subversion and destruction of the government of the United States," and the second count is the same except that it charges the same offense against the government of this state. The speech as charged being, "I believe in upsetting our government by a revolution if necessary." The proof shows that what defendant is charged with saying was not said in a public speech as these words are ordinarily defined, but before a police magistrate by whom he was examined after arrest. What the statute forbids is to advocate in public or private the subversion of the government, state or federal, or to incite, abet, promote, or encourage hostility or opposition to such governments. The testimony shows that defendant was arrested without warrant and taken before a police justice; that the latter put to him a number of questions concerning his objections to the government of the United States, and when defendant asked if he was bound to answer the questions, the judge said, "No; you don't need to answer anything, but I don't see why you should object to explaining the principle of this," and he replied he would, and said: (a) A working man did not have a fair opportunity to get a job; (b) there was not a fair opportunity of getting married because of the high cost of living. Then the police judge asked him how he would remedy these conditions, and he said by the establishment of the soviet form of government, and when asked if he meant that he would overthrow the present government of the United States his reply was, "By dissolution." He was then asked if that did not mean the overthrow of the government. He replied, "Yes," and, when asked how ho would bring it about, his reply was, "By action such as was used at the time of the American Revolution, if necessary." The only proof of the offense charged as "advocate in public by speech the subversion and destruction of the government," federal or state, was what defendant said to the magistrate in reply to his questions. This was not advocating in public by speech within the meaning of the statute. Nor was what the defendant said in reply to the questions of the magistrate advocating the suppression and destruction of the government of the United States, which is the thing prohibited by the statute. He was simply stating his...