State v. Sutherland

• Decision Date: 28 December 1939
• Docket Number: No. 4.,4.
• Parties: STATE v. SUTHERLAND et al.
• Court: New Jersey Supreme Court

9 A.2d 807

STATE

v. SUTHERLAND et al.

No. 4.

Supreme Court of New Jersey.

Dec. 28, 1939.

Error to Court of Quarter Sessions, Morris County.

William Sutherland, Sr., and others, were convicted of conspiracy to pervert and obstruct the due administration of law relating to the election of members of the Board of Education, and they bring error.

Affirmed.

Argued October term, 1939, before BROGAN, C. J., and DONGES and PORTER, JJ.

J. Victor D'Aloia, of Newark, and Edward F. Broderick, of Morristown, for plaintiffs in error.

John Drewen, of Jersey City (Richard Stockton, 3d, of Trenton, of counsel), for defendant in error.

PORTER, Justice.

The plaintiffs in error (hereinafter called defendants) were convicted at the Morris County Quarter Sessions upon an indictment charging the commission of a conspiracy, jointly with Harold Latham, to pervert and obstruct the due administration of law relating to the election of members of the Board of Education in the Township of Pequannok.

There was a severance as to Latham, who entered a plea of guilty and testified on behalf of the State. From his testimony corroborated by others and by documentary evidence the State contended that Sutherland, Sr., had been the instigator and director of a conspiracy to elect or void the election of certain candidates at the school board election held February 8th, 1939, in said township by the use of corrupt means. The contention was that the plan which was made and executed was that Sutherland, Jr., was selected as judge of one election district and Latham judge of the remaining district; that as such after the polls had closed when the votes were canvassed they read the ballots to the members of the election board who were recording the same without allowing any one else to read them and in doing so called out the names of the favored candidates when in fact they had not been voted for, the plan was to do that a sufficient number of times to cause their election. Or failing to elect those favored to so manipulate the election that same might result in a recount or the invalidity of the election. It is further contended that immediately after the votes were counted they were taken possession of together with the talley sheets and election reports by Sutherland, Jr., and Latham and taken by them, accompanied by Christian to a hotel room in Paterson which was engaged by Sutherland Jr. under the name of William Harrison, which name he signed on the hotel registry, that those three spent the rest of the night and until after midday of February 9th, in the hotel room in substituting new ballots in place of those fraudulently read and counted so that the ballots as finally strung on the cord would correspond to the false talley sheets. Latham says that he then went from the Paterson hotel to the office of the superintendent of schools in Morristown where he deposited the ballots so manipulated and other papers relating to the election.

We are not concerned with the success or otherwise of the scheme nor of the circumstances or result of the election recount except in so far as the evidence concerning those matters might throw light on the truth or falsity of the charges.

The defense was a complete denial of the charges. So there was presented sharp disputes as to the evidence for the consideration of the jury.

Various assignments of error are grouped and argued under eight points. Those not argued are considered abandoned.

One, that it was error for the trial court not to have granted the motion to direct a verdict of acquittal at the close of the State's case. In support of this point the defendants argue that the State based its case on the testimony of Latham which failed to show any conspiracy as charged, that whatever fraud was committed by Latham as judge of the election was done by him to vent his spite against those candidates against whom he bore a grudge because of failure to secure appointment as truant officer or school bus driver or to curry favor with Sutherland, Sr., but without any knowledge of his fraudulent acts by the latter. We conclude that the proofs were sufficient and were of matters set forth in the indictment.

The evidence of Latham was corroborated by other witnesses and by documentary evidence and circumstances to sustain the indictment. The form or substance of the indictment was not questioned and to do so now is untimely. R.S. 2:188-6, N.J. S.A. 2:188-6.

Two, that the trial court erroneously permitted the defendant Sutherland, Sr., to testify on cross examination, over objection, concerning the setting aside of the election by the Commissioner of Education. The argument is that this was prejudicial to the plaintiffs in error because it led the jury to the conclusion that if the election was set aside for irregularity it would be attributable to the conduct of the defendants and so point to their...