On writ of error to the Ocean Quarter Sessions.
For the state, Leo Robbins, Prosecutor.
For the plaintiff in error, David A. Veeder.
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
CASE, J. There was testimony to sustain a finding that: The accused is a young woman of German birth and parentage and was just under twenty years of age at the time in question. The accused, on her motorcycle, rode up to a group of men assembled for an exempt firemen's parade, stopped and held conversation with them. Jests were exchanged, and it was suggested by the men that one or two of them should ride with the accused on her motorcycle to a neighboring tavern for some drinks. The accused replied that she could not do that because she was a Nazi and that the police would arrest her, to which she added, "Maybe you fellows don't believe me. I will prove it to you;" whereupon she produced a paper upon which there was printing or writing in the German language -- it proved to be a birth certificate issued August 18th, 1937 -- and bearing the Nazi insignia. With that she pulled a small American flag from the front of her motorcycle, broke the staff, tore and crumbled the flag and threw the flag to the ground.
The statute (R.S. 2:130-2) provided:
"Any person who shall publicly mutilate, trample upon or otherwise deface or defile any flag, standard, color or ensign of the United States or state flag of this state, whether the same be public or private property, shall be guilty of a misdemeanor."
The indictment charged that "Helga Schlueter * * * did publicly mutilate, deface and defile the flag of the United States of America, contrary to the form of the statute in such case made and provided, and against the peace of this State, the government and dignity of the same." The accused entered a plea of "not guilty." Before trial and without withdrawing that plea she moved a quashing of the indictment. At the close of the state's case she moved a direction of verdict. Both motions were denied.
The case comes before us on writ of error and also on a certified record. There are five assignments of error and a like number of specifications for reversal. The assignments and the specifications are of practically identical content. Two of them ground in the mentioned rulings, two are directed against the court's charge and the last is that the verdict was against the weight of the evidence.
Although the court will permit a plea to be withdrawn in order to hear a motion to quash, Nicholls v. State, 5 N.J.L. 539 (at p. 541), such motion is not timely after plea entered unless the motion is preceded by a request to withdraw the plea, State v. Lambertino, 13 N.J. Mis. R. 687. The great weight of authority in this state is that the granting or refusal of a motion to quash is a matter of judicial discretion, and the resulting rule has been declared settled. State v. Riggs, 92 N.J.L. 575; State v. Ellenstein, 121 Id. 304, 324. The rule is that the discretion will not be exercised to quash unless upon the clearest and plainest ground, but the defendant will be left to a demurrer, a motion in arrest of judgment or a writ of error. State v. Davidson, 116 Id. 325. The denial of a motion to quash is not reviewable under the old one hundred and thirty-sixth section of the Criminal Procedure Act, now R.S. 2:195-16. State v. Pisaniello, 88 Id. 262.
The burden of the argument presented on behalf of the accused is that the legislative intendment was that an act to come within the statute must be committed willfully or with a willful, malicious or evil intent and that the indictment must so charge. There are instances wherein a forbidden act is completed when the act is done and there ...