On writ of habeas corpus.
For the petitioner, Louis Rudner and Augustine V. Gribbin.
For the state, Daniel O'Regan and Frank G. Schlosser.
Before Justice Trenchard.
RENCHARD, J. The petitioner seeks release from imprisonment under a commitment on conviction (under date of June 24th, 1935) of being a gangster on an indictment founded upon section 3 of the "Gangster act." Pamph. L. 1934, ch. 155.
That entire statute is predicated upon the word "gangster," thereby declared to be an "enemy of the state" in section 1; and the indictment in question upon which petitioner was convicted stated that he was "then and there being a gangster and an enemy of the state;" and section 5 of the statute provides the penalty for "being a gangster."
That statute was brought before the United States Supreme Court in Lanzetta v. State, 59 U.S. Supreme Court Reporter 618; 306 U.S. 451, upon a conviction under an indictment founded upon section 4, and the court declared that "the lack of certainty of the challenged provision is not limited to the
word 'gang' or to its dependent 'gangster.' Without resolving the serious doubts arising from the generality of the language, we assume that the clause 'any person not engaged in any lawful occupation' is sufficient to identify a class to which must belong all capable of becoming gangsters within the terms of the provision. The enactment employs the expression 'known to be a member.' It is ambiguous. There immediately arises the doubt whether actual or putative association is meant. If actual membership is required, that status must be established as a fact, and the word 'known' would be without significance. If reputed membership is enough, there is uncertainty whether that reputation must be general or extend only to some persons. And the statute fails to indicate what constitutes membership or how one may join a 'gang.' The challenged provision condemns no act or omission; the terms it employs to indicate what it purports to denounce are so vague, indefinite and uncertain that it must be condemned as repugnant to the due process clause of the Fourteenth Amendment."
While the proceeding in the Lanzetta case related only to an indictment founded upon section 4 of the aforementioned act, yet the legal and ultimate effect of that decision manifestly is to declare unconstitutional, and therefore null and void, the whole of the statute. It will be observed that the Supreme Court of the United States declared in that case that the lack of certainty of the statute related not only to the word "gang" but also the word "gangster;" that such lack of certainty existed and arose from the generality of the language "any person not engaged in any lawful occupation," as well as from other language.
That decision of the Supreme Court of the United States was applied and of course followed in our Supreme Court in the case of In re Rose, 122 N.J.L. 507, in a habeas corpus proceeding wherein the indictment was framed upon section 4 of the act, and in that case the prisoner was discharged upon the authority of the Lanzetta case.
Now section 3 of the statute, upon which the present petitioner was indicted, tried and convicted, requires as an essential element to form ...