State v. Lamb

• Decision Date: 06 June 1911
• Parties: STATE v. LAMB.
• Court: New Jersey Supreme Court

80 A. 111

81 N.J.L. 234

STATE

v. LAMB.

Supreme Court of New Jersey.

June 6, 1911.

(Syllabus by the Court.)

William Lamb was indicted for an offense against the election laws, and moves to quash the indictment. Motion denied.

Argued February term, 1911, before SWAYZE, BERGEN, and MINTURN, JJ.

George A. Bourgeois, for the motion.

Clarence L. Goldenberg, for the State.

SWAYZE, J. The defendant has attempted to remove into this court, by a writ of certiorari directed to and returned by the Atlantic quarter sessions, an indictment which is shown by the caption to have been found in the Atlantic oyer and terminer. An effort was made to cure this error by requiring the clerk to certify an order made by the Atlantic oyer and terminer referring the case to the Atlantic sessions. The return shows that no such order was made, for the reason, apparently, that the indictment was in fact returned in the sessions, pursuant to section 6 of the criminal procedure act (P. L. 1898, p. 868). It is obvious, however, that the recitals of the caption of the indictment cannot be thus contradicted, and we have therefore the case of an indictment found in the oyer and terminer which is not properly before us, since our writ was directed to the sessions. This cause would be sufficient to justify a denial of the motion. We have, however, examined the points made by the defendant, and as our views may assist the court below we venture to express them.

The indictment avers that the defendant was a member of a board of registry and election, and was acting as judge of a primary election; that it was his duty to receive from voters the ballots and deposit the same in the ballot box, and at the close of the election to take the ballots from the box and publicly and audibly read the same. It then charges that the defendant, in disobedience to the statute, "did willfully and negligently violate his duty and neglect and willfully omit to perform the same in such a way as to hinder the object of the statutes in this, that he did knowingly and willfully and corruptly fail, neglect, and refuse to deposit in the Republican primary box, or any other box, more than 50 ballots, handed him by legally qualified voters, Republican tickets intended to be cast" for a candidate on that ticket; and "did likewise knowingly, willfully, and corruptly mutilate and destroy upwards of 50 ballots cast in said Republican primary box; the same being Republican primary tickets." The Indictment seems to have undertaken to charge a willful and negligent violation of duty, and to specify as instances of such violation the refusal to deposit ballots and the mutilation and destruction of ballots. We do not stop to consider whether a violation of duty of this kind can properly be called negligent. The objection made is that the indictment fails to set forth the crime with sufficient certainty, particularly because it charges three distinct crimes for which the statute provides distinct and different punishments. The Indictment seems, however, to have been drawn under the first section of the supplement of 1005 (P. L. 1905, p. 224). It cannot he sustained under that section, which reaches only those offenses for which no other penalty is specifically imposed, since a penalty for the acts specified in the indictment is imposed under the statute as originally enacted in 1898. The sections to be considered are sections 190, 197, and 217 of the elections act of 1898 (P. L. p. 237). Of these, section 197 is not applicable. The first clause of that section applies only to public officers; a clear distinction is made in the act of 1905 between public officers and election officers—a distinction which appears in other portions of the act. The second clause of section 197 applies to any person charged with the care of official ballots or envelopes, This might be construed broadly enough to include an election officer, since he is intrusted with the care of the ballot by the voter for the purpose of depositing it in the box, and is thereafter charged with its care for the purpose of counting and making return of the result of the election; but the better construction, in view of the other language of the section, is that this clause applies only to those having the care of the ballots up to the time that the voter attempts to cast his ballot. Unless we adopt this construction, we are confronted with the difficulty that section 197 imposes in its first clause a punishment of imprisonment for not more than three years, or a fine of not more than $3,000, or both, and by its second clause imprisonment for not more than five years; while section 190 prescribes as a punishment for any person who shall alter or destroy any ballot or envelope, or any paper contained in the ballot box, a punishment by fine not exceeding $500, or imprisonment not exceeding two years, or both. It cannot be that the Legislature intended to impose inconsistent penalties for the same act, since in that event it could not be definitely known what the penalty was. To avoid this difficulty, we must adopt the narrower construction of section 197.

The charge that the defendant willfully and corruptly mutilated and destroyed ballots would charge an offense under section 190 of the election law, which makes it a crime for any person to alter or destroy any ballot contained in the ballot box, if that section applied to primaries. It does not, however, apply by its express terms, and the same offense of destroying or defacing ballots at a primary is provided for in section 217 of the original statute of 1898. At the time of the passage of that statute, section 190 evidently related only to the regular election, and section 217 only to the primary election. If both had related to the same election, there would have been an inconsistency in the statute, since the penalty under section 190 is a fine of $500 and imprisonment for not exceeding two years, or both, and the penalty under section 217 is a fine of $500 and imprisonment not exceeding one year, or both. Moreover, section 190 was expressly made applicable to primaries by section 33 of the act of 1903 (P. L. p. 603)—a pretty plain declaration by the Legislature that theretofore it had not applied. It is clear, therefore, that originally sections 190 and 217 did not overlap or conflict...