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State v. Longo

Decided: March 1, 1945.


On writ of error to the Hudson County Court of Quarter Sessions.

For the plaintiff in error, Raymond Chasan.

For the defendant in error, William George and Frank G. Schlosser.

Before Brogan, Chief Justice, and Justices Donges and Perskie.


The opinion of the court was delivered by

DONGES, J. Plaintiff in error was convicted of crime in the Hudson County Court of Quarter Sessions and by this

writ of error seeks a review of that conviction. The criminal conduct charged against him is that he and another, being employees of the Commissioner of Registration and Superintendent of Elections of Hudson County, caused certain voting records pertaining to primary election votes cast by the plaintiff in error, which records were lodged in the office of the Commissioner of Registration, to be altered. The other accused admitted his part in the occurrence. The state contended at the trial that the voting record of Longo for the primary election of 1941 had been marked "Rep," indicating the casting of a vote in the Republican party primary and that Longo and his associate had altered this to "Dem," to indicate voting in the Democratic Primary, because the record of having cast a Republican ballot might be embarrassing to plaintiff in error in his attempt to seek appointment to a certain public office which might normally be expected to go to a Democrat. Subsequently, according to the evidence produced by the state, a superior officer, learning of what had occurred, changed the record back to "Rep." In any event it is apparent from the testimony and the exhibits that an erasure in the voting record was in fact made.

The conduct alleged by the state to be criminal is made the basis of three counts in the indictment. Apparently the first count charges a violation of R.S. 19:34-1, the second count also charges a violation of R.S. 19:34-1, and the third count is worded so as to charge a violation of R.S. 2:132-1.

The first point urged by the plaintiff in error is that the judgment of conviction should be reversed because the indictment upon which it is based, and each count thereof, fails to charge a crime. This contention was first made in the court below on the motion in arrest of judgment following the finding of guilty by the jury. There was no motion made to quash the indictment, so the plaintiff in error can prevail upon his present contention only if the indictment charges no crime at all in any of its counts. It makes no difference if the indictment is so worded that one or two counts would or should have been stricken upon a motion to quash. The verdict and judgment of guilty being a general one the conviction must be sustained if any of the counts sufficiently

charges an offense. As was said by Chancellor Walker, speaking for the Court of Errors and Appeals, in State v. Huggins, 84 N.J.L. 254:

"Where there are several counts in an indictment, each charging a distinct crime, a general verdict of guilty amounts to a conviction of each separate offense, and even if the verdict cannot be supported as to one or more of the crimes charged, it would be an anomaly and a grave defect of criminal justice, if an entire reversal were necessitated, because, while conviction on one or more of the counts was legal, there nevertheless had to be a reversal on another or other counts. Such a conviction will be upheld if there be a good count describing the offense."

We deem it unnecessary to consider, therefore, whether or not the first and second counts sufficiently charge a violation of the statute or whether the proofs would sustain a conviction thereunder, because we are of the opinion that the third count clearly charges a criminal offense and further that there was evidence adduced in support of such charge. This count charged that the defendants, on or about January 20th, 1942, "with intent to prejudice some other person or persons to the Grand Inquest unknown, did unlawfully and falsely alter, forge and counterfeit divers records and other authentic matter of a public nature, &c."

The statute, R.S. 2:132-1, declares to be guilty of a misdemeanor, "Any person who, with intent to prejudice, injure, damage or defraud any other person shall:

" a. Falsely make, alter, forge or counterfeit, or cause, counsel, hire, command or procure to be falsely made, altered, forged or counterfeited, or willingly act or assist in the false making, altering, forging or counterfeiting

"1. Any record or other authentic matter of a public nature, character, letters patent, deed, lease, writing sealed, will, testament, annuity, bond, bill, writing obligatory, bank bill or note, United States treasury note, check, draft, bill of exchange, or promissory note for the payment of money, or * * *."

The contention of the plaintiff in error is that the indictment is defective because it alleges the alteration of a voting

record, an instrument wholly incapable of supporting a civil suit or defeating the civil suit of another, to his financial damage, injury or prejudice. It is argued that the statute above quoted denounces ...

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