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State v. Gaynor

Decided: January 26, 1938.


On appeal from a judgment of the Supreme Court, whose opinion is printed sub nom. State v. Bell, 15 N.J. Mis. R. 109.

For the plaintiffs in error, John W. Ockford.

For the defendant in error, Arthur C. Dunn, prosecutor of the Pleas.


The opinion of the court was delivered by

HEHER, J. Public policy ordains that a combination designed to wage war upon society shall be dispersed and its members rendered incapable of harm. This is the objective of section 4 of chapter 155 of the laws of 1934 (Pamph. L., p. 394), popularly termed the "Gangster Act;" and it is therefore a valid exercise of the legislative power.

The state is invested, in virtue of its police power -- an attribute of sovereignty -- with a large measure of discretion in the creation and definition of criminal offenses. The power is, of course, subject to constitutional restraints; and its exercise must needs be reasonable and not arbitrary or capricious. At common law, an indictable offense consisted of a wrong which, in the general public interest, should be prosecuted and punished by the state. Such legislative acts must, in the main, have reasonable relation to one of the

needs which give rise to the exercise of the police power. And the constitutional requirements of "due process" and "equal protection of the laws" would be otherwise met if the statute creating and defining the offense lay down a definite, ascertainable standard of guilt, require an accusation in due form, and operate without discrimination on all persons and classes of persons similarly situated. Levine v. State, 110 N.J.L. 467.

The touchstone is whether the text of the statute is "adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them." United States v. Cohen Grocery Co., 255 U.S. 81; 65 L. Ed. 516, 517. See, also, Connally v. General Construction Co., 269 U.S. 385; 70 L. Ed. 322; Nash v. United States, 229 U.S. 373; 57 L. Ed. 1232. "Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. United States v. Sharp, Pet. C.C. 118. Before a man can be punished, his case must be plainly and unmistakably within the statute." United States v. Brewer, 139 U.S. 278; 35 L. Ed. 190.

The prohibitory language of section 4 of the act under review cannot fairly be categorized as "vague, indefinite, and uncertain." The evident aim of this provision was to render penal the association of criminals for the pursuit of criminal enterprises; that is the gist of the legislative expression. It cannot be gainsaid that such was within the competency of the legislature; the mere statement of the purpose carries justification of the act. The police power comprehends reasonable preventive measures no less than the punishment of perpetrated offenses. If society cannot impose such taint of illegality upon the confederation of convicted criminals, who have no lawful occupation, under circumstances denoting, as is plainly the case here, the pursuit of criminal objectives, it is helpless against one of the most menacing forms of evil activity -- incapable of vindicating its inherent authority to effect individual security by repelling the common enemy.

The facts of the case in hand serve to point the need and the justification of this measure. These plaintiffs in error and [119 NJL Page 585] their associates were indubitably engaged in criminal activities. They possessed in their secluded rendezvous a varied assortment of lethal weapons (many of them stolen) and a plentiful supply of ammunition in its various forms. The variety of the weapons -- nearly all loaded -- bear testimony to the vicious character and scope of the enterprise. There were revolvers, rifles, a shot gun, a gas riot gun, a gas container and projectiles, a pocket grenade, a gas cartridge, an electric blast cap and a bottle of tear gas crystals. The seven occupants of the bungalow were residents of the city of New York. Yet one of the revolvers had been filched from a deputy sheriff of Cumberland county, in this state. The gas kit, shells and gas bombs had been purloined from a manufacturer of police equipment. There were stolen automobile registration plates, issued by the States of New York and New Jersey. They had taken possession of the bungalow but a short time before their arrest under circumstances bespeaking a criminal purpose. Each plaintiff in error had been convicted of crime -- Gaynor, of possessing a pistol; Foy, of the separate offenses of robbery and larceny; Bell, of possessing a firearm; and one of their associates, Maiwald, had been thrice convicted. They were unable to give a rational account of their possession of the firearms and ammunition -- one consistent with lawful purposes. Plainly, they were not then "engaged in any lawful occupation." Loaded guns were so placed as to indicate a purpose to resort to armed resistence if their liberty were threatened. Death would be the portion of one so interfering. This, it is fairly inferable, was averted in this instance only because the occupants of this veritable arsenal were in sound sleep when the hand of the law reached out for them. And these weapons were to be of service in the perpetration of crimes plotted by the conspirators. They were "gangsters" in the modern colloquial sense of the term -- of a class whose anti-social activities have given rise to grave problems calling for unwonted corrective measures. A system of jurisprudence that fails to brand as criminals men so circumstanced is radically deficient.

It is said that the term "gang" does not of necessity connote a criminal or unlawful purpose, and this provision is therefore an excess of legislative power. Such, however, is a modern concept of the term; and, in the construction of the provision, the word is to be given a meaning consistent with the general object of the statute. In its original sense it signifies action -- "to go;" in its modern usage, without qualification, it denotes -- in common intent and understanding -- criminal action. It is defined as "a company of persons acting together for some purpose, usually criminal," while the term "gangster" is defined as "a member of a gang of roughs, hireling criminals, thieves, or the like." Webster's New International Dictionary (2 d. ed.). And the Oxford English ...

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