Kilkenny, Halpern and Lane. The opinion of the court was delivered by Lane, J.A.D.
Cooper appeals from judgments of conviction of inciting the unlawful burning of property belonging to Camden County (N.J.S.A. 2A:148-10 subd. a) and of aiding or assisting prisoners to escape from the Camden County Jail (N.J.S.A. 2A:104-7). He was sentenced to the New Jersey State Prison for consecutive terms of not less than 2 1/2 years nor more than 3 years and not less than 1 year nor more than 1 1/2 years.
The indictments were tried against Cooper and Hopps, who were prisoners at the Camden County Jail on February 17, 1969. On that date a riot occurred in the jail during which county property was burned and destroyed and during which three fellow prisoners escaped through a window.
There was testimony from which the jury could find the following facts. The jail, located on the sixth floor of the Administration Building, consisted of four cell blocks, A, B, C and D. Cooper was an inmate in block B. When the correction officer in charge opened the door to block B to pass in a bucket and a mop, Cooper forced his way out yelling to the
other inmates to come out and that he was taking over the jail. Cooper, Hopps and another inmate took the keys away from the correction officer and opened the doors to the other cell blocks. The prisoners came out of the cell blocks, broke tables in the dining area and set them on fire, broke windows and generally destroyed available property. The lock was broken from a window in block D through which the escape was made.
Both Cooper and Hopps testified in their own behalf denying that they were involved in inciting the riot or in the riot itself and further denying that they had anything to do with the destruction of county property.
Defendant's main contention on appeal is that the trial court erred in denying his motion for judgments of acquittal made at the conclusion of the State's case. The basis of the contention is that there was no direct evidence that he had participated in the destruction of county property or that he had physically and directly assisted the three prisoners to escape. He further argues that his motion should have been granted as to the violation of N.J.S.A. 2A:104-7 because there was no evidence from which the jury could find that he had a specific intent to assist the escape.
N.J.S.A. 2A:148-10 states in part:
Any person who, in public or private, by speech, writing, printing or otherwise, advocates, encourages, justifies, praises or incites:
a. The unlawful burning or destruction of public or private property; or * * *.
The actual destruction of public property need not occur to support a conviction for a violation of that statute. The essential element of the crime is incitement to destruction of property rather than the actual destruction of property. State v. Quinlan , 86 N.J.L. 120 (Sup. Ct. 1914), aff'd o.b. 87 N.J.L. 333 (E. & A. 1915).
Commonwealth v. Hayes , 205 Pa. Super. 338, 209 A.2d 38 (Super. Ct. 1965), concerned a charge ...