On writ of error from the Morris County Court of Quarter Sessions.
For the defendant in error, William A. Hegarty, prosecutor of the pleas (John Drewen, special assistant attorney-general, of counsel).
For the plaintiff in error, Benjamin J. Darling (John H. Jobes, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
[127 NJL Page 40] BROGAN, CHIEF JUSTICE. Plaintiff in error was convicted in the Morris County Quarter Sessions of a violation of a certain section of the Election law (R.S. 19:34-20). The indictment in two counts charged that plaintiff in error "did solicit the registering of his name on the registry list of said election district (first election district, Borough of Kinnelon, County of Morris) then and there knowing that he was not a legal voter in such district," &c., and, further, that "knowing he was not a qualified voter [he] did vote at said general election," &c. The issue was one of fact, to wit, whether the plaintiff in error, Raphael Atti, was a legally qualified elector of the district in question, i.e., was he domiciled in Morris County for five months next before the election of November 8th, 1938, at which he registered and voted. Atti voted in Union City, Hudson County, New Jersey, at the general election in November, 1937. Up to that time and for ten years prior thereto he was domiciled in Union City. It was undisputed that Atti registered and voted at the general election on November 8th, 1938, in the Borough of Kinnelon, Morris County. To prove its case the state called only one witness, the official stenographer of Morris County, who testified that he had, in the course of duty, stenographically
reported a contested election for the Circuit Court of Morris County (McDonald v. Fay, Kinnelon Borough) in January, 1939, and that Atti had testified in the proceeding. The testimony of Atti was read. Objection that this evidence was inadmissible was made, the claim being that under our statute (R.S. 19:34-61) testimony so given may not be used subsequently, to the detriment of the witness, in a criminal proceeding. The legitimacy of the testimony will be considered later. The substance of the testimony given by Atti, in the contested election in the Circuit Court, as read by the official stenographer, was that Atti resided at Fayson Lakes (Morris County) and Union City (Hudson County), New Jersey; that he had lived in Union City for eleven years and that he owned "the property" there; that he did not own the property at Fayson Lakes; that he lived at Fayson Lakes for three years; that in about October, 1937, he decided to make Fayson Lakes his residence; that he had no lease; that he intended buying the property at Fayson Lakes but found some difficulty in the title; that he voted in Union City in 1937; that he came to Fayson Lakes "permanently" at the latter part of June, 1938, and went back to Union City about the first of October; that his two children attend school in Hudson County, one at Stevens Academy in Hoboken and the other at grammar school.
Our constitution prescribes who shall be electors and the conditions that must obtain to exercise the right of franchise. The requirement in the matter of residence is that a citizen of full age shall have been a resident of this state for one year and of the county in which the right to vote is claimed for five months next before the election (article 2, paragraph 1).
The question in this case is whether the plaintiff in error was a resident of Morris County in the sense that he was domiciled there for a period of five months next before the election for which he registered and at which he voted. A person may have more than one residence but may not have more than one domicile. His permanent home is his domicile and the place of his domicile determines his right to vote. The domicile is the place of his abode where he has the present
intention of remaining and to which, if absent, he intends to return.
After careful consideration of the whole fact disclosure, that which was read into the record for the state and that which was supplied by the defendant, Atti, as well as Mrs. Atti, his wife, it is clear that the finding of the jury that the plaintiff in error was not domiciled in Morris County and that he therefore unlawfully registered and voted there, is not unreasonable. Certainly he was domiciled in Union City in November, 1937, for he voted in that city. He did nothing in 1938 that he had not been in the habit of doing -- so far as his summer home was concerned -- during the three or four preceding years. His tenancy was by the year. The house in Morris County was occupied from the time schools close in June until the beginning of October. It was not an "all year round" house since it had no heating plant and it was used out of season for week-ends by Mr. Atti "weather permitting." In January, 1938 (when he had a contract to purchase the place) Atti testified he went there four or five times; he did not go to Fayson Lakes for a "continued" stay until the month of June.
Mrs. Atti testified that in the fall of 1937 she and her husband decided to make their "domicile" at Fayson Lakes "which would be our voting address," but her testimony must be considered in the light of the actions of Mr. Atti and his family.
Thirteen reasons for reversal and assignments of error are argued under six main headings. It is first said that defendant was unlawfully indicted and prosecuted. Reliance is placed upon the statute -- R.S. 19:34-61 -- which provides that "A person offending against any provision of this title shall be a competent witness against another person so offending and may be compelled to attend and testify upon any trial, hearing, proceeding or lawful investigation or judicial proceeding in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, ...