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State v. Benny

Decided: December 19, 1955.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND L. BENNY AND EDITH J. BENNY, DEFENDANTS-APPELLANTS. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. MICHAEL A. ZICCARDI AND LILLIAN M. ZICCARDI, DEFENDANTS-APPELLANTS. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. MICHAEL J. HUBERTY AND MARY V. HUBERTY, DEFENDANTS-APPELLANTS



On certification to the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.

Vanderbilt

These three appeals were taken separately from convictions found against these defendants for illegal voting in the Borough of Avalon after separate jury trials in the Law Division of the Superior Court. We certified the appeals while pending in the Appellate Division of the Superior Court, and because they involve the same legal issues we will deal with them in a single opinion. The facts in the three cases differ in details as well as in the motives of the defendants, but they are similar in their ultimate import.

I.

THE BENNY CASE

These defendants were indicted for voting fraudulently in violation of N.J.S.A. 19:34-11 at the general elections held November 3, 1953 and November 2, 1954, and at the primary election held April 20, 1954; and for false voting in violation of R.S. 19:34-22 at the primary election held April 20, 1954 for the reason that they had not resided in this State for one year and in Cape May County for five months previous to these election dates as required by Article II, paragraph 3 of the 1947 Constitution of New

Jersey, and by N.J.S.A. 19:4-1. At the outset of the trial it was stipulated that the defendants did vote at the elections stated in the Borough of Avalon in Cape May County.

The defendants are husband and wife. They own a home in Erdenheim, a suburb of Philadelphia, Pennsylvania. The photograph in evidence shows it to be a rather substantial, attractive, brick one-family dwelling of the type to be found in many of the better suburban districts of a metropolitan area. They have lived in it since 1942. The house, we are told, is completely furnished and suitable for year-round occupancy. The records of the Philadelphia Electric Company, which supplies gas and electricity to the area, indicate that electric and gas service has been rendered at the Erdenheim address in the name of the Bennys continuously from July 15, 1942. An employee of the Bell Telephone Company of Pennsylvania showed that continuous telephone service has been rendered to the defendants at their Pennsylvania address from July 1, 1942 up to the present time. The telephone account records show substantial telephone usage throughout the entire year for the years 1952, 1953, 1954 and up to May 1955, including substantial additional toll charges for the summer months. These records also show that the defendants have had a telephone continuously since 1925 and that service has been supplied to them at two other Philadelphia addresses during this period.

The various records of the company by which Mr. Benny is employed all show his address as 820 Glendalough Road, Erdenheim, Pennsylvania. The Bennys jointly own an automobile which they registered with the Pennsylvania Bureau of Motor Vehicles in their names for the years 1953, 1954 and 1955 giving their address as 820 Glendalough Road, Erdenheim, Philadelphia, Pennsylvania. Both Mr. and Mrs. Benny hold Pennsylvania operator's licenses for these same years showing that same address. They have never held New Jersey automobile licenses nor ever registered their car in this State. Their income tax returns have all been filed in Philadelphia, Pennsylvania.

The United States mail carrier whose route includes the defendants' Pennsylvania address testified he has delivered mail to these defendants continuously since 1946 without interruption except during the summer months. He indicated that during the month of July in the years 1952, 1953 and 1954 Mrs. Benny in her own handwriting filed with the Philadelphia postal authorities requests for the temporary change of address to 2432 Harbor Avenue, Avalon, New Jersey. The official post office forms filed for the years 1952 and 1954 bear the additional indication that she will notify the postal authorities when to resume deliveries at the Pennsylvania address. One specifically says, "I will notify in Sept." This postman further testified that if mail was not removed daily from the mailbox at the Pennsylvania house he would notice it and he did not recall seeing any mail accumulate in the Bennys' mailbox.

The defendants' granddaughter, an infant, lives with them at their house in Pennsylvania and attends public school there. The school records indicate that she has attended regularly during the school terms since 1947, without interruption; that the child's address is 820 Glendalough Road, Erdenheim, and that Mrs. Benny is her grandmother and her guardian. Mrs. Benny explains that she is not the legal guardian of the child but by arrangement with her daughter, who lives in nearby Philadelphia, cares for the child and attends to her needs. But, she says that "when we have to come to Avalon or take any kind of trips anywhere her mother comes up and stays at our house."

Turning to the defendants' association with this State, we find that for a number of years they have owned a house at 2432 Harbor Avenue, in Avalon. It also is described as a rather substantial frame house, fully furnished, with many of the modern conveniences, centrally heated by a gas furnace thermostatically controlled.

The defendants use their Avalon house every weekend in May and early June, and continuously occupy it from late June through July and August, and every weekend in September. During this period of continuous occupancy in June,

July and August Mr. Benny says he came down to Avalon on Tuesday or Wednesday nights, sometimes both, would return Friday night and stay until Sunday night or Monday morning. During the remainder of the year they come to Avalon occasionally on weekends, sometimes staying several days at a time. They belong to several organizations there, such as the Avalon Yacht Club and the Avalon Fishing Club.

Their general pattern of living is further indicated by the testimony of others. The Bennys were seen at the Avalon address largely in the summertime and seldom in winter. The State Police periodically checked the house from May 26, 1954 on and through the winter of 1955. They found that until June 18, 1954 no one was there; after September 4, 1954 they likewise found no one there. The utility company records show that although service was never discontinued, there was a decrease in average consumption in the winter months. A milkman testified that he delivered milk to the Bennys only during the summer season. The Avalon postmaster indicated that the mail addressed to the defendants at Avalon was forwarded pursuant to their instructions to their Pennsylvania address from September through June of the following year. The Avalon Tax Collector sent, pursuant to the direction on his records, all tax bills for the Avalon property to the Erdenheim address.

As to the voting, Raymond Benny stopped voting in Pennsylvania in 1951 and began then to vote in Avalon. Edith Benny began to vote in Avalon two or three years prior to 1951. Since voting in Avalon the defendants claim that they have not voted anywhere else. There is no evidence to show otherwise and we accept that as a fact herein.

It appears that at the times of the elections giving rise to the charges herein these defendants came specially from their Pennsylvania home, possibly several days before, and returned immediately after casting their ballots.

At the termination of the evidence the defendants moved for and were denied a judgment of acquittal. The jury returned a verdict of guilty and each of the defendants was fined $500.

THE ZICCARDI CASE

These defendants were indicted on charges similar to those in the Benny case but with respect to the general election held November 3, 1953 and the primary elections held April 21, 1953 and April 20, 1954. At the opening of their trial it was stipulated that they did in fact vote in the Borough of Avalon on the dates specified.

The defendants are husband and wife. Prior to their marriage in Maple Shade, New Jersey, in 1942, both were residents of New Jersey. Michael Ziccardi says that "back in 1924 my parents moved from Philadelphia to Maple Shade when I was seven years old" and "I lived in Maple Shade with my parents until I became married to my wife Lillian." In 1941 Michael's father turned over to him a small grocery store business located at 2701 East Cambria Street in Philadelphia. The building in which the store is located is owned by Michael's father. The photograph and description in evidence shows it to be a three-story brick building; the grocery store occupies the ground floor and there are living quarters on the second floor and bedrooms on the third floor. The exact time when the defendants took up continuous residence at the Philadelphia house is not clear. But from 1951 on there seems to be no conflict in the record.

A representative of the Philadelphia Electric Company testified that electric service had been supplied to the East Cambria Street address upon the application of the defendant, Michael Ziccardi, continuously since 1944. There was similar testimony from a representative of the Bell Telephone Company of Pennsylvania. An employee of the Philadelphia Gas Works stated that cooking gas had been furnished to the East Cambria Street building upon Michael Ziccardi's application since 1951.

A representative of the Pennsylvania Bureau of Motor Vehicles testified that the records of her department showed that both defendants had applied for and received Pennsylvania operator's licenses for the years 1952, 1953 and 1954 and that Pennsylvania registrations for a Ford coupe automobile

owned by Michael A. Ziccardi had been issued for the same years. The residence of the defendants listed on all their applications was 2701 East Cambria Street, Philadelphia, Pennsylvania.

Lillian Ziccardi was born and raised in this State. For many years her father owned a house in Avalon on the ocean front in addition to a residence elsewhere. During the hurricane of 1944 the Avalon house was pushed off its foundation blocks by force of the storm and thereafter was moved to its present location on the corner of 61st Street and Second Avenue in Avalon. It is this house that she now owns, having acquired it in 1950 by reason of her father's death and through purchase of her sister's interest. It is a bungalow or cottage type, frame dwelling, of the kind usually found in that area. It has electricity, but no ...


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