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State v. Malone

Decided: April 26, 1951.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JOHN F. MALONE, JOHN J. TOOHEY, DANIEL CASEY, JAMES CAVANAUGH, FRANK A. DEISLER AND PHILIP F. MCGOVERN, DEFENDANTS. STATE OF NEW JERSEY, PLAINTIFF, V. JOHN F. MALONE AND DANIEL CASEY, DEFENDANTS



On motion to dismiss.

Drewen, J.c.c.

Drewen

These motions to dismiss are directed to the four indictments above. Those numbered 146 and 148 charge a conspiracy to violate R.S. 19:34-42, by inviting, receiving, directing and accepting contributions for "political campaign purposes" by and from persons designated as the male employees of the City of Jersey City, in general, and of the board of education and of the housing authority of said city, in particular, all of which persons together are alleged to be within that class of public employees by whom such contributions are by the statute forbidden; and with respect to whom the alleged inviting, receiving, directing and accepting thereof is likewise alleged to be forbidden. A violation of the section is a misdemeanor. R.S. 19:34-1. The conspiracy, as such, charged in each of these indictments (Nos. 146 and 148), is predicated specifically upon R.S. 2:119-1, which provides: "Any two or more persons who shall combine, unite, confederate, conspire or bind themselves by oath, covenant, agreement or other alliance: a. To commit a crime; * * * Shall be guilty of a conspiracy and be liable to the same penalty as persons convicted of a misdemeanor." The one indictment differs from the other in the dates and periods alleged. In all other respects, they are identical.

The conspiracy charged in each of the indictments Nos. 147 and 149 is to obtain money by false pretense, likewise based upon R.S. 2:119-1. The pretense alleged is that the defendants were duly authorized, according to law, to solicit and receive moneys for and on behalf of the respective party committees and candidates in the indictments named. The persons intended to be defrauded by the said pretense were, it is alleged, the employees of the City of Jersey City and the several departments thereof, already mentioned in connection with indictments Nos. 146 and 148. The offense charged in indictment No. 147 is alleged to have been with reference to the general election held November 2, 1948; that charged in indictment No. 149 is alleged to have been with reference to the municipal election held in Jersey City on May 10, 1949. [13 NJSuper Page 515] First, as to indictments Nos. 146 and 148. One of the objections is that neither of these charges a crime. The statute (R.S. 19:34-42) whose violation is alleged as the object of the conspiracy reads: "No holder of a public office or position not filled by election by voters shall contribute to the nomination or the election of any person to public office or party position; but this prohibition shall not apply to a person holding an appointive office or position the term of which is fixed by law. No person shall invite, demand or accept payment or contribution from such persons for campaign purposes." The full scope of the conspiracy charged is within the allegation that the design and intent of the conspiracy was to violate the quoted statute, i.e. , to commit the crime the indictments contemplate "by means of inviting, receiving, directing and accepting payments and contributions of money from the male employees of the City of Jersey City * * * for political campaign purposes * * *." The trouble lies in the difference between the generic, "contributions * * * for political campaign purposes," in the indictments, and the specific, contributions "to the nomination or the election of any person to public office or party position," in the statute. What the indictments charge is exclusively within the terms of the second of the two sentences that comprise the quoted section. It will readily be seen that this sentence, as the indictments make use of it, is completely out of harmony with the remainder of the section, unless it is subordinated to the intent and meaning of the sentence that precedes it. In that relation it can have no effect other than to render it unlawful to invite, receive, direct or accept from persons of the class described any payment or contribution which it is unlawful for such persons to make. No other import would make sense, for certainly a person may be lawfully invited or induced to do that which he may lawfully do. There is a possible theory, perhaps, though not argued or advanced, that it is within the legislative power to declare it unlawful to solicit persons in public employment to do that which such persons might lawfully do of their own accord, without the forbidden inducement. As to

that, it can only be said that the assertion of such a principle in the statute, if it is there at all, is inexplicit, to say the very least, and that we are not required to search out criminal provisions in the written law by dialectic. There is no reason or excuse for the appearance of the words, "for campaign purposes" in the second sentence of the section, save only on the basis indicated, that is, by way of reference to the first sentence. Were it not for what I judge to be the accident of their deceptive position in the context, it would, I am sure, never have occurred to the pleader to incorporate them in the charge.

The two indictments in question are so strictly within the scope of the last sentence and so utterly without reference to or bearing upon the rest of the section as necessarily to imply -- on the hypothesis of their being declared valid -- the clear independence and separability of the two parts. But, as I read them, they are neither independent nor separable. Apart from the first sentence of the section, the second has no lawful meaning. Its dependence is manifest. It is ancillary to the main purpose, a kind of aiding and abetting provision, and the words "contribution * * * for campaign purposes," which the indictments take from it -- adding the word "political" -- are not a statement of that purpose but a mere reference. The incongruence presented by the section as a whole may, perhaps, be explained by the inadvertent omission of the word "such" as a modifier of the phrase "campaign purposes" in the second sentence. But this is futile speculation and is mentioned only to emphasize the difficulty. All that can be said is that the character and scope of the conspiracy here charged is fixed and limited by the means set forth and that the "contributions for political campaign purposes," which are vital to the significance of the stated means, might or might not be such campaign contributions as the employees are forbidden to make, viz. , contributions "to the nomination or the election of any person to public office or party position." There is simply no way of telling whether they are or not; nothing within the frame of the indictments gives a hint. Unlike indictments Nos. 147 and 149, these contain no reference

whatever to a campaign, political or otherwise, apart from the contributions themselves. The generalization is left free and all-inclusive. Obviously, a campaign for acceptance or rejection in a statutory referendum would not be within the penal prohibition of the statute but would be within the generalized description in the charge. The same is true of a constitutional plebiscite. Is it to be suggested that there be an inference of the unlawful character of the contributions mentioned, that is to say, that it be presumed? In my opinion, we need say no more than this: whether or not a crime was committed depends upon the existence of facts essential to the crime, particular in their nature, and about which these indictments are silent. That is enough, in my view, to demonstrate that the indictments do not charge a crime. Inferences to establish the truth of a criminal charge may be drawn from proofs adduced upon the trial thereof, there being evidential basis for it; but, certainly, the legal sufficiency of the charge may not be established by inferences drawn from within the charge itself. The proposition carries its own answer. The contrary presumption of innocence is alone sufficient impediment.

In the State's brief it is urged that "No language could be more explicit or definitive of the acts denounced than that which appears in the last sentence of R.S. 19:34-42 * * *." To this the first sentence of the cited statute is a complete answer.

The construction necessary to support the State's position raises other serious objections. If the second sentence is independent and separable it must be taken as, in itself, defining a substantive crime, as, indeed, it is contended. Then the question arises, what is a campaign purpose for which it is a misdemeanor to invite or solicit contributions? What sort of campaign is intended? The degree of vagueness and uncertainty here is better appreciated by reading the charge as pleaded without the word "political" in the phrase "for political campaign purposes." Since that word is not in the text upon which the charge is based, whatever plausibility it affords

is false. If it be contended that the use of the word is justified by the political tenor of the whole section, that is, by the maxim noscitur a sociis , how under the same maxim are we to exclude as a corrective of this vagueness and uncertainty that which in the first sentence of the section is so definite and certain? Moreover, if the sentences are independent and separable, it follows on the face of it that the legislative policy which is clear and explicit in the first sentence appears to be abandoned in the second. In construing a penal statute, we are not to suppose that the legislation was enacted with the ...


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