On certified appeal from the Law Division to the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Jacobs and Brennan. For reversal -- Justice Oliphant. The opinion of the court was delivered by Heher, J. Wachenfeld, J., concurring in result.
[22 NJ Page 60] The defendants, John Smith and Elizabeth Smith, his wife, were convicted by a jury on indictments, each of six counts, severally charging, mutatis mutandis (counts 1, 3, 4 and 6) that they voted "fraudulently" at the primary and general elections held in 1953 and 1954 in the Borough of Avalon, in the County of Cape May, New Jersey, "then and there knowing or having reason to believe himself not entitled to so vote" and that he was "not a legal voter"
in the election district in which the vote was cast, and "then and there knowing or having reason to believe that he had not resided in the State of New Jersey one year and in the County of Cape May five months next before" the election, contrary to Article II, paragraph 3 of the 1947 State Constitution and R.S. 19:4-1 and R.S. 19:34-11; and also (counts 2 and 5) that he "did offer to vote and did vote, without being entitled to vote" at the primary elections held in the given years in the Borough of Avalon, "then and there knowing or having reason to believe himself not entitled to so vote" and that he "was not a legal voter" in the district in which the vote was cast, and did not have the stated constitutional qualification of residence, contrary to the cited Article of the Constitution and R.S. 19:4-1 and R.S. 19:34-22.
Counts 1, 3, 4 and 6 are described by counsel as "relating to fraudulent voting," and counts 2 and 5, to "illegal voting." Each defendant was fined $500, without more. The fine was not apportioned as to the several counts, which counsel deems a requirement on the authority of State v. Kaufman, 18 N.J. 75 (1955). The appeal is pressed only as to the judgments of conviction on counts 1, 3, 4 and 6 of each indictment, charging "fraudulent voting," a misdemeanor, we are told, "carrying a penalty of up to three years imprisonment or a fine up to $1,000 or both, R.S. 19:34-11; R.S. 2 A:85-7"; and it is said in argument that "Inasmuch as the maximum fine for a violation of R.S. 19:34-22, of which defendants were likewise found guilty on two counts, is $100, it is obvious that at least part of the fine -- $300 for each defendant -- was for a violation of the counts involving fraudulent, rather than illegal voting."
A pretrial motion to dismiss the indictments -- counts 1, 3, 4 and 6 as not stating "facts sufficient to constitute an offense," and counts 2 and 5 as "multiplicitous" -- was denied; and a like motion made at the close of the evidence and a motion to arrest judgment after verdict were also denied.
The cases are here by our certification of the accuseds' pending appeals to the Appellate Division.
The contention is that R.S. 19:34-11 denounces "fraudulent" voting, while R.S. 19:34-22 renders criminal the act of one voting at a primary election "knowing or having reason to believe himself not entitled to so vote," and "this whether fraudulent or not"; the one statute, R.S. 19:34-11, "bans fraudulent voting at any election," and the other, R.S. 19:34-22, "makes it illegal for one to vote at a primary knowing or having reason to believe he was not entitled to vote"; and "indictments for fraudulent voting under R.S. 19:34-11 cannot be sustained if," as is the case with the indictments here, "they predicate fraudulent voting on a person's voting with reason to believe he was not entitled to vote." In other words, it is insisted, "voting with 'reason to believe' is not voting fraudulently, nor is it voting with actual knowledge"; the distinction made is "between (1) voting fraudulently, (2) voting with 'knowledge,' and (3) voting with 'reason to believe'"; the "vice in counts 1, 3, 4 and 6 is that they allege that if a person votes when he merely has reason to believe himself not qualified to vote, he is guilty of fraudulent voting," while the "reason to believe" standard is applicable only to voting at primary elections under R.S. 19:34-22, and to convict under R.S. 19:34-11 "there must be fraud, not mere 'reason to believe' -- there must be at the very least actual knowledge, not merely 'reason to believe,'" and the "jury was justified in finding guilt" under counts 1, 3, 4 and 6 "if they determined from the evidence, as well indeed they might have, that the defendants voted when they should have known they were not entitled to vote; the jury might well have determined from the evidence that the defendants had reason to believe themselves not qualified to vote."
And it is said that "Inasmuch as the two 'crimes' allegedly set forth in the indictments carry different penalties, the issues presented cannot be resolved merely by remanding the cause for resentencing"; if defendants' "position is legally sound, the convictions on counts 1, 3, 4 and 6 must be set aside in their entirety," citing State v. Kaufman, supra; State v. Matarazza, 93 N.J.L. 47 (Sup. Ct. 1919), affirmed
94 N.J.L. 263 (E. & A. 1920), and resentence on counts 2 and 5 will then be in order, offenses carrying a maximum fine of $100.
Insisting that the "statutes themselves distinguish between fraud, knowledge and reason to believe," it is nevertheless conceded that under State v. Benny, 20 N.J. 238 (1956), "fraudulent voting can be spelled out of voting with actual knowledge of one's inability to vote"; the contention is that "it is impossible to ...