[109 NJSuper Page 384] This is a motion by defendant to dismiss Ind. No. 353, Jan. Sess. 1968 Term. Defendant is charged
with offenses in two counts. The first charges her with inciting, in public, an assault upon a police officer of the City of Linden in violation of N.J.S.A. 2A:148-10(b), and the second charges an actual assault and battery upon a police officer in the City of Linden in violation of N.J.S.A. 2A:90-4(a).
For the purposes of the motion, the State's factual contentions are accepted by defendant although the acts and conduct are denied by her in an affidavit.
About September 19, 1968, a demonstration by a substantial number of persons, concerning certain claimed grievances, occurred at the Linden High School, Linden, N.J. Defendant was present at that demonstration and engaged therein. The officer named in the indictment was detailed to duty at the school during the demonstration. During the course of the demonstration defendant's son was placed under arrest by this officer. Thereupon it is alleged by the State that defendant uttered certain words inciting an assault upon the officer by some of those present. The words, among others, being of the general purport of, "Get the cop," and "Free the black boy." Defendant advances three basic contentions on the motion: (1) That defendant's conduct, even if proven, would not support a conviction, and such conviction would violate due process. (2) The statutes are vague and overbroad in their language and not drawn to meet legiti mate governmental purposes. (3) The grand jury had no evidence before it and is therefore guilty of misconduct, and the statutes are being unconstitutionally applied to this defendant because of her civil rights activities.
N.J.S. 2A:148-10 reads, in pertinent part, as follows:
"Any person who, in public or private, by speech, writing, printing or otherwise, advocates, encourages, justifies, praises or incites:
b. Assaults upon any of the armed forces of the United States, the national guard, or the police force of this or any other state or of any municipality; or"
The language in the section of the statute with which we are here concerned was construed in State v. Quinlan , 86 N.J.L. 120 (S. Ct. 1914), aff'd, 87 N.J.L. 333 (E. & A. 1914):
The first ground urged in the court below for quashing the indictment is not mentioned or argued here, and was apparently abandoned, and the proposition substituted for it and argued and urged before us is that the indictment is ineffective to charge a crime, because the statute under which it is framed violates the Constitution of this state, in that the statute is uncertain in describing the offense, and therefore void. The argument builded on this head is that, since the Legislature alone has the power to define what shall constitute a crime, it cannot delegate this power to a jury. It is claimed that the Legislature has practically delegated its power, in this respect by leaving to the jury to determine what is meant by "advocate, encourage, justify, praise, or incite," etc.
This contention is palpably unsound. A plain reading of the statute makes it manifest that it is not open to the attack leveled against it. There is no organic law or rule of sound public policy that requires the Legislature to ...