State v. Levine

• Decision Date: 09 November 1932
• Docket Number: No. 8.,8.
• Citation: 162 A. 909
• Parties: STATE v. LEVINE.
• Court: New Jersey Supreme Court

162 A. 909

STATE

v. LEVINE.

No. 8.

Supreme Court of New Jersey.

Nov. 9, 1932.

Syllabus by the Court.

1. With respect to persons not parties' to the cause, the words "conscientiously scrupulous" as used in section 26 of "An Act prescribing certain oaths," 3 Comp. St 1910, p. 3772, are applicable only to those who have scruples conscientiously founded upon religious beliefs and whose religious beliefs embrace belief in a deity and in the power of that deity to accomplish punishment.

2. Section 57 of the Criminal Procedure Act, P. L. 1898, c. 237, p. 866 (2 Comp. St. 1910, p. 1838, § 57), providing that "upon the trial of any indictment the defendant shall be admitted to testify if he shall offer himself as a witness," sets up a civil right, the denial of which is in contravention of the Fourteenth Amendment to the Federal Constitution, and the denial of which on account of the defendant's religious principles is in contravention of article 1, § 4, of the State Constitution.

3. Article 1, § 4, of the State Constitution, interpreted to direct that the belief or the disbelief of any person on religious topics shall not debar him from rights which the law affords to others.

4. A defendant who offers himself as a witness, and for whom, because of his disbelief, the solemn oath is inappropriate, is entitled, upon his request, to affirm.

Error to Court of Quarter Sessions, Essex County.

Samuel Levine was convicted under an indictment for advocating the subversion of the government of the United States, and he brings error.

Judgment reversed.

Argued October term, 1931, before GUMMERE, C. J., and PARKER and CASE, JJ.

Abraham J. Isserman, of Newark (Morris L. Ernst and Alexander Lindey, both of New York City, of counsel), for plaintiff in error.

Joseph L. Smith, Pros., Simon L. Fisch, and Harold H. Fisher, all of Newark, for the State.

CASE, J.

This is an appeal on strict writ of error from a judgment of conviction of Samuel Levine in Essex quarter sessions on an indictment for advocating the subversion of the government of the United States.

Five persons, offered as witnesses on behalf of the defendant, were denied their several requests to be affirmed. Consequently they did not testify. The defendant, produced in his own behalf, was permitted to tell his story to the jury, but was denied his request to be affirmed as a witness. The rulings effecting these denials are before us. The reason for the rulings was that the persons involved refused to take an oath, stated that they believed neither in God, nor in any god, nor in the Bible, that they had no religious belief whatsoever, and that because of this mental attitude they were conscientiously scrupulous of taking an oath.

Pertinent constitutional and statutory provisions are the Fourteenth Amendment to the Federal Constitution, particularly these words, "* * * Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws;" article 1, § 4, of the state Constitution, especially this portion, "No person shall be denied the enjoyment of any civil right merely on account of his religious principles;" and sections 22 to 29, inclusive, of "An Act prescribing certain oaths" (3 Comp. St. 1910, pp. 3772, 3773, §§ 22-29); 3 Comp. St. 1910, p. 3772, § 26 of which reads as follows:

"Every person, who shall be permitted or required to take an oath in any case, where by law an oath is allowed or required, and who shall allege that he or she is conscientiously scrupulous of taking an oath, shall, instead of the form of an oath, be permitted to make his or her solemn affirmation or declaration; and if such person shall choose to affirm, it shall be in words following, to Wit:

"I,——, do solemnly, sincerely, and truly declare and affirm:

"But if such person shall choose to declare, it shall be in the words following, to wit:

"I, ——, do declare, in the presence of Almighty God, the witness of the truth of what I say:

"Either of which forms shall be as good and effectual in law, as an oath taken in the usual form, in which affirmation or declaration, the words 'so help me God,' at the close of the usual oath, shall be omitted."

It is contended that the proposed witnesses, in alleging that they were conscientiously scrupulous of taking an oath, thereby invoked the peremptory direction of the statute, and were entitled forthwith to be affirmed. But, in order to understand the real purport of the statute and the true significance of the phraseology, some historical study as to origin, use, and acceptation is necessary. The religious aspect of the sacramental, corporal, or solemn oath, commonly called simply "the oath," is self-apparent. The matter embraced within sections 22 to 29, inclusive, mentioned above, was first enacted, in its present wording and arrangement, February 16, 1799, under the title, "An Act for the relief of persons, who are scrupulous of taking an oath in the usual form," Patterson's Revision, p. 367. A fair interpretation of the wording of the title and the body of the act is that merely the form and not the substance of the oath, as it theretofore existed, was being diversified. The latter statute had its parentage in an Act passed February 10, 1727 (Allinson's Laws of New Jersey, fol. 76), which limited the privilege of testifying under affirmation to the religious sect known as Quakers, as follows: "* * * The People commonly called Quakers * * * may take an Affirmation in the Words following, pursuant to the said Statute, I A B do solemnly, sincerely, and truly, declare and affirm.'" Section 1. The 1727 statute followed closely upon, was in terms related to, and in essential words identical with, the English statute of 1721 authorizing the members of the Society of Friends to affirm in the language last quoted. Parliament had in 1696 permitted the Quakers to testify by pronouncing the form that now appears secondly in section 26 of our statute supra, known as a declaration, but the Society of Friends were not pleased therewith, as they objected to any ceremonial involving what they believed to be a profane and impious reference to the Deity. "Oaths in Judicial Proceedings and Their Effect upon the Competency of Witnesses," 42 American Law Register, N. S. 373, 421. Therefore, the later enactment.

Thus were introduced the several forms now in ordinary use, all being grounded in religious belief. The English statute was later extended to Moravians and Separatists and still later to all persons of any denomination who stated that they had conscientious scruples against swearing. Finally, by statutes passed in 1869 and 1871 (The Justice of the Peace, England, vol. 44, p. 567), and 1888, the English Parliament authorized the making of affirmation by any person who objected to being sworn and who stated as the ground of such objection either that he had no religious belief or that the taking of an oath was contrary to his religious belief; the pertinency of these statutes to the present discussion being that obviously the earlier provision for those who had "conscientious scruples" against taking an oath was not considered to have application to a person without religious beliefs, that is to say, without beliefs grounded in a religion of some sort. Indeed, it has very generally been held in judicial opinions and considered in unofficial writings that the phraseology, "conscientiously scrupulous of taking an oath," has relation to scruples that are based on religious belief, and does not include the mental state that accompanies the having of no religious belief. The expression, at the time of its inception carried the significance of "religiously scrupulous"; and this use, in this connection, still maintains. For illustration, see Webster's New International Dictionary in its definition of "conscience clause" as "a clause in a general law exempting persons whose religious scruples forbid compliance therewith—as from taking judicial oaths, service, etc."

Under the common law, no person could be a witness in a judicial proceeding unless he believed that there was a god and that that god would punish him if he swore falsely. Omichund v. Barker, 1 Atk. 21, 11 English Ruling Oases 126 (A. D. 1744). The common law, except in so far as it has been altered or repealed by statute, is the law to-day. Constitution, art. 10, par. 1.

A consistent view was entertained by the early jurists in this state. In Den v. Vancleve (1819) 5 N. J. Law (2 Southard) 589 at page 652, Chief Justice Kirkpatrick said: "These causes [viz. for depriving a person of the privilege of being a witness], so far as they are personal, or go to the capacity of the witness, are principally these three; the want of discretion, as in the case of infants; the want of intellectual powers, as in the case of idiots, lunatics and madmen; and the want of religious principle and belief, as in the case of those who do not believe in the being, perfections and providence of God, nor in a future state of rewards and punishments, where he that beareth false witness, and so taketh the name of his God in vain, shall not be held guiltless."

Likewise in Williamson v. Carroll (1837) 16 N. J. Law 217, Chief Justice Hornblower remarked: "But the legislature, with becoming respect and deference, to the religious sentiments and opinions of a numerous and highly respectable portion of the community, has provided a substitute for the sacramental, or corporal oath, for such as are conscientiously scrupulous of submitting to that...