On writ of error to the Supreme Court.
For the defendant in error, Manfield G. Amilicke, Prosecutor.
For the plaintiff in error, Aubrey J. Elias and Hymen Siejendorf (John O. McGuire, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal by the plaintiff in error, John Tulenko, from a judgment of the Supreme Court affirming a judgment of the Court of Quarter Sessions of the County of Passaic of conviction and sentence of said John Tulenko for non-feasance in office.
The case purports to come up by both assignments of error under a strict writ of error and specifications for reversal and on the entire record had upon the trial of the cause.
On November 3d, 1942, Tulenko was a member of the district election board for the third election district of the first ward in the City of Passaic. He, together with Andrew Ferik, Eleanor Dzacivski and Peter Sakanis, the other members of the board, was indicted by the grand jury on a charge of non-feasance in office arising out of certain alleged irregularities in the conduct of the 1942 general election in said election district. On the date of trial a severance was granted to the defendant Andrew Ferik because he was in the armed services of the United States and an adjournment was refused to the other three members of the board who claimed the testimony of Ferik and a policeman, who was stationed at the polls all day and was also in the armed forces, was needed for their defense. At the trial Peter Sakanis was acquitted and plaintiff in error, Tulenko, and defendant Eleanor Dzacivski were found guilty. This appeal is by Tulenko only. The indictment charged in one count, in substance, that said plaintiff in error and the other defendants did, while then and there engaged in the discharge of their duties as members of said board, unlawfully, willfully, knowingly and fraudulently neglect to perform their duties as election officers in the following particulars; to wit, in failing to reject and declare void, ballots illegally marked, ballots bearing illegal erasures and
ballots on which the voters had voted for a number of candidates for office in excess of the number of candidates to be elected; * * * in failing to carefully and accurately add up the votes given for each candidate for office and truly note the same upon the tally sheet; in unlawfully and with gross negligence adding marks to the polls by false counting; in neglecting, before signing the statement, certificate and return of the result of said election, personally to examine each of the tally sheets, to determine the result; in unlawfully, willfully, knowingly and with gross negligence making, signing and certifying a false and untrue statement, certificate and return of the result of said election and causing the same to be delivered and filed in the office of the clerk of Passaic County, contrary to the form of the statute in such case made and provided. The indictment does not specify the statute of which the omissions are said to be a violation but the state contends that the indictment upon which the three election officers were tried and plaintiff in error was convicted was based upon R.S. 2:160-1, which is but a statement of the common law and 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."
Prior to the trial, counsel for the defendant obtained permission from the court to withdraw the plea of not guilty and moved to quash the indictment on the grounds of duplicity, multifariousness, ambiguity and uncertainty. The trial court withheld its judgment on the motion and directed the pleas to be re-instated and the trial to proceed. At the conclusion of the prosecutor's opening to the jury and at the conclusion of the state's case, and also at the end of the whole case, counsel for defendants moved for a directed verdict of acquittal, all motions being based on the same grounds upon which counsel had moved to quash the indictment. All motions were denied and exceptions allowed. Plaintiff in error presents nine points for reversal.
The first point is that the indictment is duplicitous and, therefore, faulty in that it alleges several distinct offenses in a single count, and the rule is that this may not be done,
citing State v. Bolitho, 103 N.J.L. 246; affirmed on the opinion of the Supreme Court in 104 Id. 446, and ...