On writ of error to the Morris County Court of Quarter Sessions.
For the plaintiff in error, J. Victor D'Aloia and Edward F. Broderick.
For the defendant in error, John Drewen (Richard Stockton, 3d, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
PORTER, J. The plaintiffs in error (hereinafter called defendants) were convicted at the Morris County Quarter Sessions upon an indictment charging the commission of a conspiracy, jointly with Harold Latham, to pervert and obstruct the due administration of law relating to the election of members of the Board of Education in the township of Pequannok.
There was a severance as to Latham who entered a plea of guilty and testified on behalf of the state. From his testimony corroborated by others and by documentary evidence the state contended that Sutherland, Sr., had been the instigator and director of a conspiracy to elect or void the election of certain candidates at the school board election held February 8th, 1939, in said township by the use of corrupt means. The contention was that the plan which was made and executed was that Sutherland, Jr., was selected as judge of one election district and Latham judge of the remaining district; that as such after the polls had closed when the votes were canvassed they read the ballots to the members of the election board who were recording the same without allowing anyone else to read them and in doing so called out the names of the favored candidates when in fact they had not been voted for, the plan was to do that a sufficient number of times to cause their election. Or failing to elect those favored to so manipulate the election that same might result in a recount or the invalidity of the election. It is further contended that immediately after the votes were counted they were taken possession of together with the tally sheets and election reports by Sutherland, Jr., and Latham and taken by them, accompanied by Christian, to a hotel room in Paterson which was engaged by Sutherland, Jr., under the name of William Harrison, which name he signed on the hotel
registry; that those three spent the rest of the night and until after mid-day of February 9th, in the hotel room in substituting new ballots in place of those fraudulently read and counted so that the ballots as finally strung on the cord would correspond to the false tally sheets. Latham says that he then went from the Paterson hotel to the office of the superintendent of schools in Morristown where he deposited the ballots so manipulated and other papers relating to the election.
We are not concerned with the success or otherwise of the scheme nor of the circumstances or result of the election recount except in so far as the evidence concerning those matters might throw light on the truth or falsity of the charges.
The defense was a complete denial of the charges. So there was presented sharp disputes as to the evidence for the consideration of the jury.
Various assignment of error are grouped and argued under eight points. Those not argued are considered abandoned.
One, that it was error for the trial court not to have granted the motion to direct a verdict of acquittal at the close of the state's case. In support of this point the defendants argue that the state based its case on the testimony of Latham which failed to show any conspiracy as charged, that whatever fraud was committed by Latham as judge of the election was done by him to vent his spite against those candidates against whom he bore a grudge because of failure to secure appointment as truant officer or school bus driver or to curry favor with Sutherland, Sr., but ...