For the plaintiffs in error, John O. McGuire (Hyman Siegendorf, of counsel).
For the state, Walter D. Van Riper, Attorney-General, John M. Ward, Assistant Attorney-General.
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a criminal case. Plaintiffs in error (defendants below) were two of the four duly appointed and qualified members of the Board of Registry and Elections
who acted and served as such, at the general election on November 2d, 1942, in and for the eleventh election district of the fourth ward of the City of Passaic. Both were convicted of the crime of non-feasance (the other two were acquitted), and each was sentenced to be confined in the county jail for a term of three months and to pay $500 and stand committed until the fine was paid. Both appeal. Their appeal is before us on strict writ of error (R.S. 2:195-1) and a purported entire record of the proceedings had upon the trial. R.S. 2:195-16.
The state concedes that the indictment upon which the four were tried, and upon which plaintiffs in error were convicted, was based upon R.S. 2:160-1 which provides that: "Any magistrate or other public officer who shall willfully refuse or neglect to perform, within the time required by law, any duty imposed upon him by law, shall be guilty of a misdemeanor."
Briefly stated, the indictment charges in one count, in substance, that plaintiffs in error "unlawfully, willfully, knowingly and fraudulently" neglected and omitted to perform their duties as election officers (compare R.S. 19:34-48) in the following particulars, viz., in failing and omitting to compare the signature made by the voter in the poll book with the signature theretofore made by the voter in the signature copy register for the election district in question (R.S. 19:15-15), in failing and omitting to exercise reasonable care to prevent voting by false impersonation, and in neglecting and omitting to reject ballots illegally marked, ballots bearing illegal erasures (R.S. 19:16-4), in failing to reject and declare void ballots on which the voter had voted in excess of the number of candidates to be elected to office at said election in said election district (R.S. 19:16-3), in failing carefully and accurately to add the vote given for each candidate for office to be filled at said election and truly note the same upon the tally sheet (R.S. 19:16-9), and in failing, before signing the statement, certificate and return of the result of the election in question, personally to examine each of the tally sheets to determine the correctness of the results (R.S. 19:17-2).
On the day of and immediately prior to trial, counsel for all defendants, with leave of the court, withdrew their plea of not guilty and moved to quash the indictment on grounds hereinafter stated. The trial judge reserved decision on the motion, reinstated the pleas, and the trial followed. At the end of the state's case and also at the end of the entire case, counsel moved for a directed verdict of acquittal including in each motion the grounds upon which he had moved to quash the indictment. The trial judge denied all motions.
Eight reasons for reversal are set down and argued for plaintiffs in error. The first four reasons relate to the attack made upon the refusal to quash the indictment because of its asserted illegality. The grounds upon which that attack is made here, as below, are (1) that the indictment is duplicitous in that it charges several distinct offenses in a single count; State v. Clement, 80 N.J.L. 669; 77 A. 1067; State v. Bolitho, 103 N.J.L. 246, 263; 136 A. 164; affirmed, 104 N.J.L. 446; 146 A. 927; (2) that it is "uncertain and ambiguous" in that it makes no specific reference to any "particular act done or perpetrated by any one individual defendant;" (3 and 4) that it fails to charge a crime although it is argued that the ...