Collester, Mintz and Lynch.
Defendant was indicted on two counts: (1) in public, inciting an assault upon Albert Carhart, a municipal officer of the City of Linden, while in uniform, contrary to N.J.S.A. 2A:148-10(b), and (2) assault and battery upon said officer while acting in the performance of his duties, contrary to N.J.S.A. 2A:90-4(a).
Defendant's motion for dismissal of the indictment was denied in an opinion reported in 109 N.J. Super. 382 (Law Div. 1970).
Defendant was tried to a jury and found not guilty of the assault and battery charge. The jury failed to reach a verdict on the "inciting count." After a second jury trial in November 1970, defendant was found guilty of inciting an assault, in violation of N.J.S.A. 2A:148-10(b).
The State's evidence was to the effect that on September 19, 1968 a demonstration of a substantial number of persons occurred at Linden High School. Lt. Albert J. Carhart, of the city police department, was assigned to photograph student disorders. According to Carhart, a black youngster kicked Carhart, whereupon he grabbed the boy and arrested him. As he did so, a woman whom Carhart did not know but whom he identified as defendant yelled "Free the black boy. Don't let him lock him up. Get the cop, get the cop." A number of black youths surrounded
Carhart, grabbed at him, and he was forced to release the boy.
Defendant testified to an entirely different version. Admittedly present at the high school, she denied being in the vicinity of the kicking incident and denied using the language attributed to her. Several witnesses corroborated her testimony.
On appeal defendant challenges the constitutionality of N.J.S.A. 2A:148-10. She further contends that assuming it could permissibly do so, the trial court's charge to the jury did not cure the facial defects in the cited statute. N.J.S.A. 2A:148-10 provides that:
Any person who, in public or private, by speech, writing, printing of otherwise, advocates, encourages, justifies, praises or incites:
a. The unlawful burning or destruction of public or private property; or
b. Assaults upon any of the armed forces of the United States, the national guard, or the police force of this or any other ...