95 N.J.L. 337 | N.J. | 1921
The defendant was tried and convicted on two indictments, charging the violation of the provisions of sections 2 and 3 of the supplement to the Crimes act, approved February 12th, 1918. Pamph. L., p. 130. The indictments are similar in form except one charges the advocacy of the subversion of the government of' the United States and of the State of New Jersey, and the other that the defendant was a member of a society formed to encourage hostility to the government of the United States and of the state. With the consent of the defendant the two indictments were tried before the same jury, but the convictions and judgments were separate. Only one writ of error is printed in the record and that removes the judgment on the indictment relating to the subversion, by advocacjq of the federal and state governments, but the return thereto contains both indictments and judgments which were argued at the same time without objection to the form of the printed record.
One indictment charges in the first count that defendant “did willfully, knowingly and unlawfully advocate in public by speech the subversion and destruction of the government of the United States,” and the second count is the same except that it charges the same offence against the government of this state. The speech as charged being, “I believe in upsetting our government by a revolution if necessary.” The proof shows that what defendant is charged with saying was not said in a public speech, as these words are ordinarily defined, but before a police magistrate by-whom he was examined after arrest. What the statute forbids is to advocate in public or private the subversion of the government, state or federal, or to incite, abet, promote or encourage hostility or opposition to such governments. The testimony shows that defendant was arrested without warrant and taken before a police justice; that the latter put to'him a number of questions concerning his objections to the government of the United States, and when defendant asked if he was bound to answer the questions, the judge said: “No, you don’t need to
It is to be regretted that counsel for defendant did not confine his argument to the issue, instead of criticising the conclusions of the Court of Errors and Appeals in State v. Tachin, 92 N. J. L. 269, and writing a propaganda in favor of the theories of the Communist party, which savored of a greater desire to advance doubtful theories than interest in the question in which his client was vitally interested, and which if adopted would deprive him of the very protection he now seeks. But the ill-advised efforts of counsel should not deprive defendant of what he is entitled to, and that is the
The other indictment is based upon the third section of the supplement of the Crimes act, above referred to, which provides that f<any person who shall become a member of any organization, societj' or order organized or formed, or attend any meeting, or counsel or solicit others so to do, for the purpose of inciting, abetting, promoting or encouraging hostility or opposition to the government of the United States, or of the State of New Jersey, or who in any manner shall aid, abet or encourage any such organizaztion, society or order or meeting'in the propagation or advocacy of such a purpose, shall be guilty of a high misdemeanor.” At the close of the trial counsel for defendant moved th'at the court direct that the defendant be acquitted on this indictment because the statute upon which it is rested is unconstitutional, and this we think is sound. Under the constitution and bill of rights the legislature cannot make it criminal to belong to a party organized or formed for the purpose of encouraging hostility or 'opposition to the government of the United States,' or of this state, unless the 'hostility or opposition includes a purpose to overthrow or subvert such government. The constitutionality of the second section of the act was sustained in State v. Tachin, supra, because that section provides that the hos
The judgment in both cases will be reversed.