State v. Bienstock

The opinion of the court was delivered by Voorhees, J.

Two indictments for conspiracy were returned against the defendants by the grand jury. To each a general demurrer was filed and thereafter writs of certiorari removed them into tins court for the determination of the questions arising upon the demurrers.

The first indictment, known as No. 139, consisting of a single count, has been above set forth in extenso. The other indictment, No. 169, consists of four counts, the first of which is tlie same as No. 139, being founded on precisely the same facts. The second count concededly cannot be sustained. The third count is substantially covered by the first count. The fourth count seems to be bad under State v. Nugent, 48 Vroom 157 .

The controversy is mainly concerned with the first count of each of the indictments and not with the supplementary counts in the second indictment, so that the real question presented is whether the first counts above mentioned allege a criminal conspiracy.

At the outset it must he conceded that the nomination of a president and vice president of the United States is not recognized by the constitutions or laws, either federal or state. The mode of choosing these officers is found in the United *266 States constitution. Article II., section 1, provides that the president and vice president “shall be elected as follows: Each state shall appoint in such manner as the legislature thereof may direct a number of electors,” and article XII. (twelfth amendment) provides that the electors “shall name in their ballots the person voted for as president and in distinct ballots the person voted for as vice president,” and sign and certify the voting lists and transmit them to the seat of government.

It is perceived that the electors of each state are free to vote for any person for these offices who is not disqualified.

The choice of electors is, however, wholly within state jurisdiction, and the state has power to punish for illegal and fraudulent voting for presidential electors. In re Green, 134 U. S. 377. These indictments, however, have not for their object the punishment of such fraudulent voting. For are they concerned with a violation of the State Primary Election act, for that act is not comprehensive enough to include the primary election referred to in the indictments. The wrong specified as the object of the consjDiracjr is the tampering with ballots cast at a party primary voluntarily held for the choice by the Republican voters of the ward (a) for delegates to the Republican state convention at Trenton, which was to elect four delegates-at-large to the Republican national convention to be held at Chicago, and (5) for delegates to the Republican convention of the tenth congressional district of New Jersey, which was to elect district delegates to the Republican' national convention. The national' convention in turn recommends persons for president and vice president of the United States to be voted for by the electors who may constitutionally vote as they choose notwithstanding such recommendation.

It is conceded that the acts charged as the purpose of the conspiracy do not constitute a crime for which an indictment would lie.

Do the facts present a situation where neither the object of the conspiracy nor the means need be criminal in order to sustain an indictment for conspiracy ?

*267 In 1899 (Pamph. L., p. 214) the Crimes act relating to conspiracies was amended so that instead of providing “any two or more persons who shall combine, &c., to commit any offence” the word “crime” was substituted for the word "offence.” The old act containing the word “offence” was construed in State v. Norton, 3 Zab. 33, and it was there stated “when the common law and the statute differ, the common law gives place to the statute, but only when the latter is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative, and the common-law offence of conspiracy was not abolished by the statute defining conspiracy, but such a conspiracy as was indictable before'the statute at common law is so still.” This case, therefore, is not necessarily governed by the statute. AVe must look to the common law.

• The earlier decisions in Eew Jersey held that a conspiracy to be the foundation of an indictment must be directed to the perpetration of a crime, or, when having for its object a lawful or indifferent act, it must be accomplished by criminal means.

State v. Rickey, 4 Halst. 293, was an indictment for conspiracy to obtain money from a bank by means of checks and drafts of the defendants to be drawn on the cashier when the defendants had no funds in the bank for their payment, and the court, held that an indictment would not lie for a conspiracy to commit a civil injury of any description that is not in itself an indictable offence.

Chief Justice Green, however, in State v. Norton, supra, speaking of State v. Rickey, says: “In this state the point (whether a conspiracy io commit a private injury, which is not in itself a public offence, can constitute the offence of conspiracy at the common law) has never been decided. In the case of State v. Rickey, Justice Ford, in delivering his opinion, does indeed say that it may be laid down as a settled mile that an indictment will not lie for a conspiracy to commit a civil injury of any description that is not in itself a public offence, but that was not the opinion of the court,” and then proceeds to say “the great weight of authority, the adjudged .cases, no less than the most approved elementary writers sus *268 tain the position that a conspiracy to defraud individuals or a corporation of their projDerty may in itself constitute an indictable offence if the act done or proposed to be done in pursuance of the conspiracy be not in itself indictable/’ citing numerous authorities. He continues:

“A combination (says Justice Gibson) is a conspiracy in law whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates and giving effect to the latter, whether of extortion or mischief,” and then further on in the opinion adverts to the fact that to defraud a bank rests upon somewhat different grounds from a conspiracy to oppress an individual, saying:

“It appears upon principle to come within this class 8f acts which are held to be indictable on the ground that the act done though not in itself indictable is essentially a public injury.”

This case would therefore seem to overthrow the doctrine supposed to have been enunciated in State v. Rickey, or at least to render that case inept upon the point for which it has been quoted.

The soundness of the decision in State v. Norton, supra, was not denied in the case of State v. Young, 8 Vroom 184 , if indeed it may not be considered to have been approved by it.

In State v. Donaldson, 3 Vroom 151 , Chief Justice Beasley refers to the preceding cases and says:

“It is certain, however, that there are a number of cases in which neither the purposes intended to be accomplished nor the means designed to be used were criminal which have been regarded to be indictable conspiracies,” and then referring to State v. Rickey, supra, and State v. Norton, supra, remarks on the latter ease:

“The rule of law thus enunciated appears to me to- be the correct one. There are a number of cases which cannot be sustained upon any other doctrine,” and, after citing cases, continues :

“These are ail cases, it will be noticed, in which the act which formed the foundation of the indictment would not, *269 in law, have constituted a crime, if such act had been done by an individual, the combination being alone the quality of the transactions which made them respectively indictable. I conclude, then, that there is no uncertainty in this legal topic to this extent, in addition to the principles before adverted to, that cases may occur in which the purpose designed to be accomplished becomes punitive, as a public offence, solely from the fact of the existence of a confederacy to effect such purpose. It is certainly not to be denied, however,.that great practical difficulty is experienced whenever any attempt is made to lay down any general rules by which to discriminate that class of combinations which becomes thus punishable, from those which are to he regarded in their results as mere civil injuries, remediable by private suit. It may be safely said, nevertheless, that a combination will be an indictable conspiracy whenever the end proposed, or the means to be employed are of an highly criminal character, or where they are such as indicate great malice in the confederates, or where deceit is to be used, the object in view being unlawful, or where the confederac.y, having no lawful aim, tends simply to the oppression of individuals. A careful analysis of the cases which have been heretofore adjudged will reveal the presence of one or more of the qualities here enumerated; to this extent, therefore, they may be relied on as safe criteria whereby to test new emergencies as they may be presented for adjudication.”

In State v. Cole, 10 Vroom 324 , Chief Justice Beasley also delivered the opinion. The gravamen of the charge was the fraud of a partner in fabricating the notes of his firm and with the collusion and aid of a third person putting them to a use entirely alien to the business of the firm. It was there urged that the facts charged in the indictment did not constitute a criminal offence inasmuch as a partner has a right to execute and put off the notes of the firm; that was but a civil injury and not a breach of the public law. The court continuing, says:

“But this is a fallacious view, which has a plausible semblance only, because all the constituents of the problem to be *270 solved are not taken into account. Tlie query is not whether it is an indictable offence for a member of a firm to direct a partnership note to alien uses, but whether it is not such crime for him to do such act by concert with a third person, the intention of the two being fraudulent, and the act being carried into effect by deceitful devices. It is these added characteristics of the affair which, in my view, heighten the malfeasance into a punishable crime. Keeping in mind these adjuncts, the case easily falls within the scope of the offence of conspiracy, as defined in State v. Donaldson, 3 Vroom 151 .”

State v. Hickling, 12 Vroom 208 , was a conspiracy to slander a person by charging him with a criminal offence. The objection was made that taking the pleading at its best it alleged nothing more .than a conspiracy to defame a person by the propagation of a slander, and that the wrong thus charged was a civil injury and not a. criminal offence. The learned Chief Justice then says:

“But the rule of law thus assumed to exist is not only unsupported so far as has been described by any authority, but is opposed by several direct decisions and is inconsistent with the general legal authority of the subject. The eases on this head heretofore settled by this court, are with respect to the legal principle underlying that, entirely at variance with the rule here contended for,” quoting the Donaldson case and the Cole case.

In State v. Rowley, 12 Conn. 101 , the court said:

“Many acts, which if done by an individual are not indictable, are punishable criminally when done in pursuance of a conspiracy among numbers,” and the doctrine that a combination to do an unlawful act, is punishable as a conspiracy even though the act attempted was not a crime per se or by statute, was held in Smith v. People, 25 Ill. 17 , where the court said:

“If the term unlawful means criminal or an offence against the criminal law and as such punishable, then the objection taken to this indictment is good,” the unlawful act in that case being an act not indictable or punishable as a crime; but the court continues:

*271 “But bv the common law governing- conspiracies, the term is not so limited, and numerous cases are lo be found where convictions have been sustained for conspiracies to do unlawful acts, although those acts are not punishable as crimes; nor yet would it be quite safe to say that the term unlawful as here used includes every act which violates the legal rights of another, giving that other a right of action for a civil injury, and v;e are not prepared to say where the line can be drawn.”

Where the conspiracy results in mischief to the public, it seems that the indictment will be sustained where neither the object nor the means are criminal. Tn speaking of conspiracies involving public mischief, the remarks of Chief Justice Beasley, in State v. Young, supra, are pertinent. ITe says:

“There are many acts and things which become punishable on the ground that they 'affect seriously the rights of many, which are not so when they thus affect the rights of only one or a few. A nuisance is an illustration of this principle. Such a wrong originating in a private trespass, as it expands so as to work a hurt to numbers of persons, is converted into an offence against the community. I see no reason why, by analogy of reasoning, a cheat designed to be practiced against a body corporate representing the public, is not to be put on a similar footing. Tn a politic point of view an injury grows in aggravation in the ratio of the number of persons injuriously affected by it, and the public is interested in the same ratio in preventing its recurrence. And public cheats not only reach large numbers of persons, but they are easy to effect and most difficult to detect and punish. There are certainly the strongest social grounds to treat and punish them as crimes, and although there may be no case precisely in point, there are those which rest upon principles which logically lead to this result. But the cases go further than to hold that such indictments are sustainable only where the public is injured, an injury resulting to individuals is sufficient to sustain them.”

In Morth Carolina an indictment was sustained (State v. Younger, 1 Dev. 357 ) for conspiracy to cheat one by making *272 Jim drunk and playing falsely at cards with him. See, also, Twitchell v. Commonwealth, 9 Pa. St. 211.

Prom this resumé it appears to be true that an indictable conspiracy may be a combination to accomplish an object which is not criminal by means which are not criminal, where the public is injuriously involved or where the result would be either injury or oppression to individuals. Adopting that as the law, do the facts in this ease come within the legal limits of the rule thus laid down ? The easting of votes at a primary of the kind in question clearly was an act not illegal, but rather one having a purpose highly beneficial to the public, designed to bring into public view, and so to the notice of the presidential electors, those men whom the public at large by means of primaries, delegates and conventions, agencies voluntarily accepted by the people, had recommended as being, in their opinion, fit for and capable of exercising the duties of the high office which the electors were under the constitution to fill. In Hopper v. Stack, 40 Vroom 562 , the Supreme Court sustained the constitutionality of the Primary Election law as being admittedly a regulation of established party methods, and as regulative and protective as to the right to vote at primaries, holding that it did not create the right but was based upon the legislative determination of the antecedent existence of that right. The court in that case said:

“Thus the legislature must have recognized as a fact the existence of political parties of varying numerical strength by which candidates for popular election were placed in nomination upon party tickets and platforms. It must likewise have determined that in the selection of such nominees each of these political parties invited the co-operation of voters-who were in practical affiliation with it, and resented attempts at participation by or interference from those not so in sympathy. The legislature must further have decided that the purpose of these party proceedings were so far public purposes that those engaged in them ought to be protected in what they had undertaken, and that to this end the police power of the state should be exercised. * * * In all of this there is *273 no calling of anything into existence, no creation of political parties or of primary meetings, no prescription of the terms of membership — in fine no initiation of any essential matter, but only the recognition of an existing state of facts, and a determina!ion to throw over them the protection of police regulation. * * * My conclusion upon this phase of the argument * * * is that primary elections as they in fact exist are so far matters of public concern that they are proper objects of legislative oversight.”

' Before the passage of the present Primary act the legislature liad recognized the right of the individual to hold primaries. See “An act to regulate the holding of and to prevent fraud in primary elections of the several political parties in the cities of Now Jersey,” approved May 9th, 1884 (Pamph. L., p. 323), and therein recognized “the rules and regulations adopted by either party lor the government of said primary election.”

Another instance of like recognition is afforded by “An act to prevent and pnnish bribery at primaries, conventions and elections.'''' Pamph. L. 1883, p. 171. This act has to do with influencing by bribery voters at any election of any delegate to any convention of any political party of this state to nominate any candidate, &e., thus recognizing the right and practice of the people to vote at primaries for delegates to nominating conventions.

Political conventions for the recommendation of presidential candidates are by no means new. They have been in existence certainly as early as the year 1825, although not continuously nor uniformly. But, as the indictments charge, 11 rey have been continuously resorted to for over fifty years and for tbe pun pose of recommending candidates for the consideration of the presidential electors. Their purposes, the crystallizing of political sentiment and the manifestation of the will of the people from all parts of the country as to their choice for nominees, are not only lawful but in entire accord with our notion of government by the people, and, moreover, are public purposes. It may not he too much to say that, having been so recognized and so used by the people as a *274 means of expressing their ideas and wishes, to interfere with such expression by the unlawful means of tampering with the ballots cast at such primaries by deceitful and fraudulent devices, and thereby depriving, cheating and defrauding the majority of those entitled to vote at such primary of their lawful right to have their votes east thereat honestly counted, is interfering with a public act lawful in its purpose, so recognized by the people and by the legislature, and one in the exercise of which all citizens are entitled to protection from combinations designed to prevent the honest use of these agencies. As was said in State v. Woodruff, 39 Vroom 89, 94 , “Fraud is clearly charged in the indictment before us and is of such a kind as should be punished.”

We think, therefore, that the object of the conspiracy was unlawful (unlawful acts in this connection not being confined to th'ose punishable as crimes) in that it had a necessary tendency to prejudice the public and so was essentially a public injury, and that this unlawful object was designed to be accomplished by deceit and fraud, was a cheat reaching large numbers of persons and tended to their oppression.

The first indictment, No. 139, must be sustained as well as the first count of indictment No. 169.

These views render unnecessary a consideration of the learned and able argument on the part of the state evincing great research, putting forth the claim that the right of the people of New Jersey to vote is an inherent political right, which had been exercised and recognized from the earliest times in England, citing in support Ashby v. White, 14 How. St. Tr. 795, and tracing the origin of the right from the words of Tacitus, from accounts of the elections of the kings, the nature of the Witenagemote and other historical sources, and from the mode of conducting an election for members of parliament, as described in 8 Petersd. Abr. Com. L. 453, 664.

We arc met, however, on the part of the defendants, with the argument that the primary described in the indictments is of the same character as that under consideration in State v. Woodruff, 39 Vroom 89 , wherein this court used the following language:

*275 “is1 or are wo able to sustain this indictment as a cdmmonlaw indictment. It is undoubtedly true that fraud at elections was indictable at common law and is still, irrespective of the statute. In Commonwealth v. McHale, 97 Pa. St. 397; 39 Am. Rep. 808 , 813, Chief Justice Paxon, of Pennsylvania, discusses this whole question and refers to the rule as to such indictments in this country.

“But the election at which the fraud is committed, to constitute the common-law offence, must be a popular election, the fraud going' to the destruction of the right of the elective franchise in the selection of public officers for public positions. Such a thing as a primary was not known at the common law. It is the outgrowth of a modern convenience or necessity. \ primary is not an election in the sense of the common law; it is merely a method for the selection of persons to be balloted for at .such an election. Prior to our primary acts a primary had no legal status whatever. All it has now is statutory, and all the penalties for its violation must be found m the statute.”

In considering that case and its authority to control the present case, two things must be noted — first, it was not an indictment for conspiracy, but for unlawfully and fraudulently counting the ballots contrary to the statute, and secondly, it was expressly founded upon section 217 of “An act to regulate elections,” revision of 1898. It was therein declared that the act specified as a crime was not made so by the above statute.

In the present case we are concerned with a conspiracy the object of which is unlawful in the sense hereinbefore pointed out, which renders it unnecessary that we should find express warrant in the law, either common or statutory, to bring its object within the ban of the criminal law.

Hence, what was said regarding the status of a primary, and that it was unknown to the common law, must be understood to apply to the case then sub judice and not to be extended to the facts in the present case, which are quite distinguishable.

“When an offence is created by statute * * the in *276 dietment must be drawn in reference to the provision of the statute.” 1 Whart. Cr. L., § 371. Such was the condition in the Woodruff case. Hence the remarks as to the court’s inability to sustain the indictment at common law were obiter..

Commonwealth v. McHale, 39 Am. Rep. 808 , cited in the Woodruff case, is not an authority at variance with our holding in the present case. In that case the defendant, not an election officer, was indicted on three counts, for (1) fraudulently entering names on the poll books; (2) depositing false- and fraudulent ballots in the ballot box, and (3) for making a false and fraudulent count at an election of a district attorney. There was no statute that covered it, but the court, sustained the indictment as valid at the common law, saying

“We are of opinion that all such crimes as especially affect public society are indictable at common law. The test is not whether precedents can be found in the books, but whether-they injuriously affect the public policy and economy. An offence against the freedom and purity of elections is a crime against the nation. It strikes at the foundation of republican, institutions. Its tendency is to prevent the expression of the will of the people in tire choice of rulers, and to weaken the public confidence in elections. The ingenuity of politicians is such that offences against the purity of elections are constantly liable to occur which are not specifically covered by-statute. It would be a reproach to the law were it powerless to punish them.”

Assuming, however, that the primary was unknown to the common law, that fact cannot be made the basis for an argument that a combination like the one in question is not indictable at common law. Nor is State v. Nugent, 48 Vroom 157 , controlling here. There the indictment was for conspiracy, the object of which was to procure unqualified voters to vote, in violation of the statute concerning primary elections. The indictment was confined to the statute and did not attempt to describe a wrongful act apart from the statute, and its statutory description of the wrong having failed, resort to the common law was precluded. Therefore, these cases were not controlling. Eights unknown to the common law, if they *277 be in truth rights, are protected by the principles of the common law, and then infringement by conspiracy is punishable by the criminal law.

There being but a single count in indictment No. 139, and the demurrer interposed to indictment No. 169, which contains four counts, being a general demurrer to the whole indictment, the demurrer in each case must be overruled, the sustaining of a single count being sufficient to produce that result.

The court, therefore, determines that, the said indictments are sufficient in law and that an order may be entered that the same be returned by the clerk of this court to the court from which they were removed to the end that said court shall proceed thereon in the same manner as if the said writs of certiorari had not been allowed, with costs to be recovered against the defendants.