Narrow, J.c.c., Retired and Temporarily Assigned on Recall.
Defendant, having been tried on an eight-count indictment, was found guilty by a jury of the last four counts. He is challenging his conviction on the last three counts, contending that the statute on which the sixth count is based was unconstitutionally applied to him and that his convictions on the seventh and eighth counts are inconsistent.
This issue as to the sixth count conviction does not appear to have been passed on by our courts.
All eight counts of the indictment are the result of a firebombing of the home of Jesse Williams wherein a person by the name of Glen James was also living. Glen James had testified as a material witness for the State in May 1976 in a trial in which defendant's brother was convicted of a double murder. It was the theory of the State's case that in order
to get even with Glen James for so testifying defendant conspired with and induced two juveniles to firebomb the home where James was residing. The firebombing was committed by the two juveniles on August 14, 1976, resulting in the home being completely destroyed and a young child who was spending the night there being burned to death. The two juveniles then went to defendant's residence to receive payment of the $100 they had been promised, but defendant shunted them aside and did not pay them. However, they returned later and asked defendant for $10, which he gave them to make their getaway. The State's case, insofar as defendant's involvement in the crimes was concerned, almost completely depended on the testimony of one of the juvenile participants.
Defendant denied his involvement in the offenses in any way except that he admitted that he knew the juveniles; in fact, he admitted that the juvenile who did not testify was his nephew, and that they came to him after the firebombing and told him about having firebombed the house and needing some money to get away, and he gave them $10.
The jury acquitted defendant on the first count of the indictment charging him with conspiring with the juveniles to commit arson. The second count charged defendant with arson and the third count charged him with aiding and abetting the juveniles to commit arson, and since both counts charged the same offense the State was permitted to elect on which it chose to proceed at the end of the State's case. The State having elected to proceed on the third count, the second count was dismissed. The jury found defendant not guilty on the third count, and also not guilty on the fourth count charging felony murder.
Defendant was found guilty of the fifth count charging him with assisting the juveniles to escape apprehension, in violation of N.J.S.A. 2A:85-2, and this conviction is not being challenged.
As stated heretofore, defendant is challenging his conviction on the sixth count which charged him with having knowledge
of the arson and murder committed by the juveniles and not disclosing and making the same known to an official designated in the statute as soon as he could do so, in violation of N.J.S.A. 2A:97-2. Defendant contends that, in the existing factual circumstances, to require him to comply with this statute would invade his constitutional right not to incriminate himself.
However, the identical question was dealt with in United States v. King , 402 F.2d 694 (9 Cir. 1968), in connection with a federal statute which ...