State v. Quinlan

• Decision Date: 05 June 1914
• Parties: STATE v. QUINLAN.
• Court: New Jersey Supreme Court

91 A. 111

86 N.J.L. 120

STATE

v. QUINLAN.

Supreme Court of New Jersey.

June 5, 1914.

Error to Court of Quarter Sessions, Passaic County.

Patrick Quinlan was convicted for encouraging and inciting the killing or injuring of a class of persons, and he brings error. Affirmed.

Argued November term, 1913, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Henry Marelli, and Hunziker & Randall, all of Paterson, for plaintiff in error. Michael Dunn, Prosecutor of the Pleas, of Paterson, for the State.

KALISCH, J. The plaintiff in error was convicted in the Passaic county quarter sessions court on an indictment based upon section 5e of the Crimes Act (C. S. p. 1744), which provides as follows:

"Any person who shall, in public or private, by speech, writing, printing or by any other mode or means, advocate, encourage, justify, praise or incite the unlawful burning, destruction of public or private property or advocate, encourage, justify, praise and incite assaults upon the army of the United States, the National Guard, or the police force of this or any other state or of any municipality, or the killing or injuring of any class or body of persons, or of any individual shall be guilty of a high misdemeanor."

The legality of the judgment pronounced upon this conviction is brought up for review on a strict bill of exceptions and under the section 136 of the Criminal Procedure Act.

The essential part of the indictment, the validity of which is attacked by the plaintiff in error, reads as follows:

"The said Patrick Quinlan did willfully and unlawfully in public by speech advocate, encourage, and incite the said persons so assembled at said meeting to assault, beat, and do injury to a certain class and body of persons residing in said city of Paterson, the township of Acquackanonk and the borough of Haledon, who were silk operators employed in said silk mills in said different municipalities, in said county, and who were not on strike; in that the said Patrick Quinlan did then and there utter and speak the following words: 'I make a motion that we go to the silk mills, parade through the streets, and club them out of the mills; no matter how we get them out, we got to get them out'—contrary to the form of the statute," etc.

Before the jury was sworn the plaintiff in error moved to quash the indictment upon these grounds: (1) That the statute under which the indictment is found restrains and abridges liberty of speech in violation of article 1 and section 5 of the state Constitution; (2) that the indictment does not set forth any offense against the statute on which it is based; (3) that the language set forth in the indictment which is charged to be unlawful does not import the meaning attributed to it or any meaning which is unlawful.

The trial judge refused to quash the indictment, and allowed the plaintiff in error an exception to his ruling.

The first ground urged in the court below for quashing the indictment is not mentioned or argued here, and was apparently abandoned, and the proposition substituted for it and argued and urged before us is that the indictment is ineffective to charge a crime, because the statute under which it is framed violates the Constitution of this state, in that the statute is uncertain in describing the offense, and therefore void. The argument builded on this head is that, since the Legislature alone has the power to define what shall constitute a crime, it cannot delegate this power to a Jury. It is claimed that the Legislature has practically delegated its power, in this respect by leaving to the jury to determine what is meant by "advocate, encourage, justify, praise, or incite," etc.

This contention is palpably unsound. A plain reading of the statute makes it manifest that it is not open to the attack leveled against it. There is no organic law or rule of sound public policy that requires the Legislature to define the meaning of English words in common and daily use.

Moreover, we think the sense of the statute is clear. It denounces, as a high misdemeanor, the act of any person who, in public or private, shall by speech, writing, printing, or by any other mode or means advocate, encourage, justify, praise, or incite the killing or injuring of any class or body of persons or of any individual. The Legislature has in express terms defined what shall constitute an offense under the statute. Counsel of plaintiff in error seem to have wholly misconceived its purport. We are unable to discern anything contained therein which leaves it to a jury, as claimed by the plaintiff in error, to determine what is meant by "advocate," "encourage," or "incite."

This statute, like every other legislative act, is subject to judicial interpretation. When the occasion arises it will become the province of the court to determine what constitutes in law an "incitement" or as the case may be, under the statute, and for the jury to determine the facts tending to establish a breach of the statute, under the law as defined by the court.

The fact that the statute groups together various means by which the end may be accomplished and makes any one of them an offense when done to attain the object denounced by the act does not render such statute uncertain and void. Such legislation has received the sanction of a practice extending back to time immemorial, and we need only refer to our crimes act in which there will be found numerous instances of legislation of this sort from the earliest period in the history of this state, down to the present time, and among which may be mentioned statutes relating to arson, burning, forgery, abortion, etc.

But it is further insisted by counsel of plaintiff in error that the indictment fails to charge an offense within the contemplation of the statute. The argument made on this head is that, in order to charge a crime within the purview of the statute, the indictment must set out not only the uttering of the words which are alleged to advocate, encourage, and incite the injury or killing of the class or body of persons or of any individual, but also that, as a result of such uttering of the words, there was a killing or injury of a class or body of persons or of an individual.

This contention is unsound. In State v. Murphy, 27 N. J. Law, 112, on page 113, the defendant was convicted under an indictment charging him with having advised, without lawful justification, a pregnant woman to take some noxious thing, with intent to cause her miscarriage. It was objected that the indictment did not aver that the drug, medicine, or noxious thing advised to be taken or swallowed, was, in fact, taken or swallowed by the woman. Green, C. J., in disposing of the objection said:

"The language of the enactment is: 'If any person * * * maliciously or without lawful justification, with intent to cause and procure the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine, or noxious thing * * * such offender shall, on conviction thereof, be adjudged guilty,' etc. The crime of which this defendant is convicted, as defined by the statute, consists in advising, without lawful justification, a pregnant woman to take some noxious thing, with intent to cause her miscarriage. The actual taking or swallowing of the drug, by the terms of the statute, constitutes no element of the crime. The offense charged in the indictment falls clearly within the letter of the statute."

It is germane to the matter under discussion to observe here that the section of the Crimes Act on which the indictment in the case sub judice is founded is not an innovation upon, but declaratory of, the common law.

Stephen, in his Digest of Criminal Law (Ed. 1877) p. 33, says:

"Every one who incites any person to commit any crime commits a misdemeanor, whether the crime is or is not committed."

The author's text is supported by Rex v. Higgins, 2 East, P. C. 5-22; Rex v. Scofield, Cald. 397; Rex v. Plympton, 2 Lord Raymond, 1378; Rex v. Vaughn, 4 Burr. 2499. In King v. Philipps, 6 East, Lord Ellenborough, in reviewing some of the cases above cited, on page 472 said:

"And if the sending of the letter in the case of King v. Vaughan to solicit a party to commit that misdemeanor were properly held indictable, I am at a loss to see why a letter sent to provoke and excite a person to the commission of the offense in question is not equally so."

The common-law doctrine is founded upon the principle that public policy requires that the solicitation or incitement to the commission of an act which is injurious to the public shall be punished as a criminal offense. Thus in Regina v. Daniel, 1 Salk. page 381, where the defendant was indicted for enticing an apprentice from his master, and was convicted, judgment was arrested upon the ground "that this was a private injury for which case lies, and not in its nature public to maintain an indictment."

In the case of Regina v. Gregory, 1 L. R. C. Co., p. 75, it was held to be a misdemeanor to solicit and incite a servant to steal his master's goods, though no other act was done except the soliciting and inciting.

Enough has been said upon this topic to demonstrate the fallacy of the contention of the plaintiff in error that the indictment does not charge a complete offense, because it does not set out that there was a killing or injuring of a class or body of persons or of an individual. But, before leaving this topic, it would be well to mention another potent reason against the claim made by the plaintiff in error in this respect. Bearing in mind the conditions under which the statute came into vitality, it lends force to the view that the Legislature had the purpose to make the punishment for encouraging, inciting, or advocating murder or assault and battery more drastic than formerly. It raised violations under the act from simple misdemeanors to high...