On writ of error to the Morris County Court of Quarter Sessions.
For the plaintiff in error, King & Vogt (Harold A. Price, of counsel).
For the state, William A. Hegarty (John Drewen, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The question requiring decision in this cause is whether any reversible error was committed in the conviction of plaintiff in error for having violated certain provisions of our election laws relating to procuring, advising or assisting unlawful registration, and unlawful voting.
Title 19 (Elections) provides (N.J.S.A. 19:34-20) that those convicted for violating the following provisions, amongst others, shall be guilty of misdemeanors.
1. "Whoever shall * * * willfully counsel, procure, aid, advise, assist or abet in the registering of the name of any other person on the registry list of any election district or precinct, knowing such other person is not entitled to vote therein * * *."
2. "Whoever, * * * at any election counsels, procures, aids, advises, assist or abets any person, knowing that he is not a qualified voter, to vote thereat: * * *."
Frank B. Fay, Jr., plaintiff in error here and defendant below, was tried and convicted by a jury on an indictment concededly found under the above stated provisions of the statute.
The indictment, which consists of two counts, charges that defendant violated both the above quoted provisions, by willfully counseling, procuring, aiding, advising, assisting and abetting one Ragnhild H. Matzen to register illegally and to vote illegally at the general election for the First Election District of the Borough of Kinnelon, County of Morris, held on November 8th, 1938.
The proofs disclosed, in substance, that Miss Matzen was a resident of Plainfield, Union County, New Jersey, from the time that she was "very small" and that prior to the year 1938 she had voted at Plainfield. The defendant, Frank B. Fay, Jr., was president of Fayson Lakes, Inc., a development company at Fayson Lakes located in Morris County. Miss Matzen, on or before July 1st, 1938, first met the defendant when she came to Fayson Lakes to look at some property. She carried on all her transactions for the rental of a house for the month of July, 1938, with Frank Fay, 3d, a son of the defendant. After residing at Fayson Lakes for one month, she returned to Plainfield. On August 20th, 1938, Miss Matzen contracted for the purchase of property at Fayson Lakes again conducting all her transactions with defendant's son. On the day of the contract, she made out a check and an installment note, both payable to Frank B. Fay, Jr., the defendant. The note was paid off by a "few payments" sent through the mails to the defendant. On June 1st, 1940, the conveyance was made to Miss Matzen by Fayson Lakes, Inc.
Frank B. Fay, Jr., the defendant, became a candidate for mayor of Kinnelon Borough in the year of 1938. During the primary campaign the following typewritten circular, prepared by his office, and, "possibly" by him, was mailed "to a list of people who were property owners for long standing:"
There is to be a primary election in Kinnelon Borough on September 20th, 1938. This election is of considerable importance to you as a property owner and if you can find it convenient, it will be to your best advantage to register and vote at that time where your vote really counts. If you desire, it will only be necessary to leave your name or names in the ...