State v. Unger

• Decision Date: 17 June 1919
• Citation: 107 A. 270
• Parties: STATE v. UNGER et al.
• Court: New Jersey Supreme Court

107 A. 270

STATE

v. UNGER et al.

Supreme Court of New Jersey.

June 17, 1919.

Syllabus by the Court. fendants, that "the failure, if there was a failure, to O. K. the signature in the pollbook cannot be a ground for liability" to add, "But the failure to O. K. may be considered by you as bearing on the other evidence in the case," when the evidence showed that in many instances the election officers having charge of the pollbook at the time the voter signed his name, instead of strictly following the requirement of section 46 "by writing his initials after such signature," wrote the letters "O. K.," and that in many other instances there was an entire absence of the "O. K." and the initials.

Error to Court of Quarter Sessions, Hudson County.

Louis Unger, William F. Looney and John P. Kelly were convicted of an offense at a special election to fill a vacancy in the Board of Commissioners of Jersey City and they bring error. Affirmed.

Argued November term, 1918, before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ.

Robert H. McCarter, of Newark, and Alexander Simpson, of Jersey City, for plaintiffs in error.

Pierre P. Garven, Prosecutor of the Pleas, of Jersey City, for the State.

TRENCHARD, J. The plaintiffs in error were three members of the board of registry and election for the Second district of the Second ward of Jersey City, and with one Hosbach, the fourth member, were indicted for misconduct at a special election held in Jersey City on October 7, 1917, to fill a vacancy in the board of commissioners of Jersey City caused by the death of Commissioner Brensinger. Hosbach was not tried, but appeared as a witness for the state, and the three plaintiffs in error were convicted.

We are of the opinion that the judgment must be affirmed.

The indictment contained three counts. The first charged the defendants with knowingly and fraudulently receiving the votes of persons who the defendants knew impersonated and voted upon the names of others. The second count charges them with willfully and unlawfully aiding or abetting persons to vote upon names other than their own; and the third count is based upon the alleged willful neglect and refusal of the defendants to carry into effect the provisions of sections 46, 47, and 48 of the act of April 19, 1911 (1st Sup. Comp. Stat. pp. 547, 548), requiring the comparison of the signatures upon the registry and pollbooks respectively, and the challenge of voters in certain cases.

The first point is that—

"The trial judge erred in charging the jury with reference to the defendants' duty to compare the signature of the voter in the pollbook with that in the registry book."

The real contention under this point is that the judge erroneously led the jury to believe that it was the duty of the entire election board to make such comparison, but that he did not do. True he stated that the duty of making such comparison of signatures was cast upon the election officers, but he also clearly and correctly charged, in the very language of the defendants' request, that not all of the election officers, but only one of them, was charged with that duty, and this was in accordance with section 46 of the act of April 19, 1911 (P. L. p. 276, as amended by Act March 29, 1916 [P. L. p. 593]), providing that "one of the members of the board of registry and election shall compare the signature made in the pollbook with the signature theretofore made by the voter in the registration book," etc. In view of the fact that different members of the board may make the comparisons at different times of the day, we are not prepared to say that the instruction was objectionable as to the portion complained of considered alone. But if so that would not lead to reversal, because it is quite clear that in the circumstances of the case the charge on this topic considered as a whole was correct, and not misleading, and could not have prejudiced the defendants. State v. MacDonald, 89 N. J. Law, 421, 99 Atl. 128, affirmed 103 Atl. 165;, Kargman v. Carlo, 85 N. J. Law, 632, 90 Atl. 292.

The next point is that the trial judge erred in permitting Assistant Prosecutor McCarthy, called by the state in rebuttal, to testify as to certain declarations and admissions made to him by the defendant Unger after the election in question. But we perceive nothing in this justifying a reversal.

Of course where, as here, two or more defendants are indicted and tried together, the declarations of one which have a legitimate tendency to establish his guilt are admissible against him, even though not admissible against his codefendants. In such case the proper remedy of the defendant against whom the declaration is not admissible is to request a limitation of its application. This seems not to be seriously questioned by the defendants, but they insist that, even if proper in chief, it was not admissible in rebuttal. But it is within the discretion of the trial judge to admit in rebuttal, or at the time of rebuttal, evidence which is not strictly rebuttal, and which should or might have been offered in chief, and the admission of such evidence will not lead to reversal except in cases of gross abuse of such discretion. State v. Skillraan, 76 N. J. Law, 464, 70 Atl. 83, affirmed 77 N. J. Law, 804, 76 Atl. 1073.

In the present case no such abuse appears. It was entirely open to the defendant to have contradicted the evidence as to his declarations by testimony in surrebuttal if he had seen fit to do so.

It is next contended that "there was error in the trial judge's refusal to charge the defendant's...