On error to the Essex County Court of Quarter Sessions.
For the state, Joseph L. Smith, prosecutor, Simon L. Fisch and Harold H. Fisher.
For the plaintiff in error, Abraham J. Isserman and Morris L. Ernst (Alexander Lindey, of counsel).
Before Gummere, Chief Justice, and Justices Parker and Case.
The opinion of the court was delivered by
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, section 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. Stat., p. 3772), section 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 ...