McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.
The appeals in these cases were consolidated for hearing. They bring up for review orders of the Union County Court denying defendants' motions to dismiss seven indictments (Nos. 244 to 250, inclusive) and orders denying defendants' motions for the reopening of argument on the motions to dismiss the indictments and for leave to take depositions. When the applications for leave to appeal (Rule 4:5) were made, the Prosecutor of the Pleas consented to the granting thereof. Cf. State v. Helms , 14 N.J. Misc. 564 (Sup. Ct. 1936).
Indictment Nos. 244 to 248, inclusive, each charge an individual defendant, in several counts, with procuring illegal registrations. Since Count I of Indictment No. 248 is typical of the counts in all these indictments, the arguments are addressed to it. This count charges: "on the 22nd day of September, 1949, in the City of Rahway, in the County of Union * * * the said City of Rahway then and there being a municipality having permanent registration pursuant to the provisions of the laws regulating elections * * * George F. Bartell unlawfully, knowingly, corruptly, and willfully did counsel and procure the name of John Paskowitz, Jr., to be registered on the registry list of the First Election District of the Fifth Ward of the said City of Rahway for the next ensuing general election to be held on Tuesday, the 8th day of November, 1949, * * * the said John Paskowitz, Jr., then and there not being entitled to vote in the aforesaid election district at the said next ensuing general election for the reason that he * * * would not have been a resident of the State of New Jersey for a period of
one year next before said election * * * and the said George F. Bartell then and there well knowing that he, the said John Paskowitz, Jr., was not entitled to vote in the aforesaid election district" for the reason given.
R.S. 19:34-20, in pertinent part, provides that: "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 * * * shall be guilty of a misdemeanor and punishable by a fine of five hundred dollars, or imprisonment in state prison for the term of three years, or both."
The initial attack is that the indictments "fail to charge a crime, in that they allege that the defendants registered certain persons for the general election of 1949, whereas in fact and in law the alleged registrations could only be permanent registrations." That the registrations were permanent registrations does not alter the fact that they were also registrations for the next ensuing general election. R.S. 19:31-5, which sets forth the requirements for registration, provides: "Each person, who at the time he applies for registration resides in the district in which he expects to vote, who will be of the age of twenty-one years or more at the next ensuing general election, who is a citizen of the United States, and who, if he continues to reside in the district until the next general election, will at the time have fulfilled all the requirements as to length of residence to qualify him as a legal voter, shall, unless otherwise disqualified, be entitled to be registered in such district * * * The registrant when registered as provided in this title shall be eligible to vote at any election subsequent to such registration * * *." If John Paskowitz, Jr., was registered on September 22, 1949, as charged, such registration was a registration for the next ensuing general election, which was held on November 8, 1949.
The next challenge is that the indictments fail to charge a crime "in that whereas the statute tests eligibility
to vote as of election day, the indictments charge that the persons registered were, as of earlier dates, then and there not entitled to vote." This challenge is frivolous. The indictments state that the persons were registered "then and there not being entitled to vote in the aforesaid election district at the said next ensuing general election * * *." (Italics ours.) R.S. 19:31-5 requires that the registrant, at the time of registry, must be one who will, if he continues to reside in the district until the next general election, at that time have fulfilled all the requirements as to length of residence to qualify him as a legal voter. A violation of this requirement is clearly charged. Cf. State v. Nugent , 77 N.J.L. 80 (Sup. Ct. 1908).
The indictments are said to be defective because they charge that the persons registered were not entitled to vote; whereas the proper test is whether they were entitled to be registered. The indictments clearly charge the procuring of an illegal registration in violation of R.S. 19:34-20 (above). State v. Nugent , above.
An attempt was made below, and is renewed here, to have the indictments dismissed on the ground that, in a collateral proceeding, after the general election of 1949, for the striking of names from the permanent registration rolls of Union County, the names of sixteen of those alleged in the indictments to have been illegally registered were struck from the list, while the names of three were not struck. On a motion to dismiss, the facts stated in the indictment as constituting the offense must be taken as true. State v. Tachin , 92 N.J.L. 269, 277 (Sup. Ct. 1919); affirmed, 93 N.J.L. 485 (E. & A. 1919); writ of error dismissed, Tachin v. State of New Jersey , 254 U.S. 662, 65 L. Ed. 463 (1920); 42 C.J.S., Indictments and Informations , § 214. The motion to dismiss will be denied unless the indictment on its face appears incapable ...