State v. HopsonState v. Hopson
This is а motion by defendant to dismiss Ind. No. 353, Jan. Sess. 1968 Term. Defendant is charged
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 indictmеnt 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 prоven, 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 legitmate 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.
“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 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 ineffeсtive 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, encоurage, 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 Legislаture to define the meaning of English words in common and daily use.
Moreover, we think the sense of the statute is clear.
It denounces, as a high misdemeanor, the act of any person who, in public or private, shall be speech, writing, printing, or by any other mode or means advocate, encourage, justify, praise, or incite the killing or injuring of any class or body of persons or of any individual. The Legislature has in express terms defined what shall constitute an offense under the statute. Counsel of plaintiff in error seem to have wholly misconceived its purport. We are unable to discern anything contained therein which leaves it to a jury, as claimed by the plaintiff in error, to determine what is meant by “advocate,” “encourage,” or “incite.”
This statute, like every other legislative act, is subject to judicial interpretаtion. When the occasion arises it will become the province of the court to determine what constitutes in law an “incitement” or as the case may be, under the statute, and for the jury to determine the facts tending to establish a breach of the statute, under the law as defined by the court.
The fact that the statute groups together various means by which the end may be accomplished and makes any one of them an offense when done to attain the object denounced by the act dоes not render such statute uncertain and void. Such legislation has received the sanction of a practice extending back to time immemorial, and we need only refer to our crimes act in which there will be found numerous instances of legislatiоn of this sort from the earliest period in the history of this state, down to the present time, and among which may be mentioned statutes relating to arson, burning, forgery, abortion, etc.
As pointed out in Quinlan, ordinary and common everyday English language is used which can be properly interpreted and defined by the trial court. Whether this defendant understоod the language or not is not the test. The
Defendant advanced the argument that the statute does not relate to the incitement of conduct upon an individual, but rather it is directed to such upon the police force as a group. It is true thаt penal statutes are strictly construed but not to the narrow and strict degree contended by defendant. It is obvious that the framers of the legislation had in mind breaches of the peace and the protection of human life and limb whether of an individual оr group. It would be most unusual for a police force as a whole to be involved. The gravamen of the statutory offense lies in the incitement or encouragement of the commission of the offense even though, as pointed out above, thеre may not be an actual assault. The statute is not a new application of the law, but is declaratory of the common law and directed at certain prohibited conduct which is likely to result in the commission of a criminal offense on pоlice authority. The language has to be read, “assaults upon any of the police force.” The court finds no merit in the argument that this applied solely to the group and not to the individuals thereof. Wright v. Vogt, 7 N.J. 1, 6-7 (1951).
The contentions of defendant seem to assume that constitutional and personal rights are absolute. This is not so, and there are many limitations for the protection of other individuals or the public. When the right harms such
That the State, in the reasonable exercise of its police power, may provide for punishment of those who abuse freedom of speech by utterances inimical to the public welfare, and tending to corrupt public moralе, incite to crime, or disturb the pubic peace, is not open to question. State v. Klapprott, 127 N.J.L. 395, 400 (S.Ct. 1941).
The statutory provisions of
At common law it was a misdemeanor for one to incite or to solicit another to сommit a misdemeanor or a felony. Such was considered to be prejudicial to the welfare of the community. It goes without saying that to attempt to incite or actually commit an assault upon a police officer is prejudicial to the community and to the administration of law enforcement and criminal justice. State v. Blechman, 135 N.J.L. 99, 101 (S.Ct. 1946). The right to protest does not include a right to disregard statutes reasonably designed to protect the rights of all. State v. Smith, 46 N.J. 510, 521 (1966), cert. den., 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71 (1966).
Defendant alleges that there was misconduct on the part оf the grand jury, in that there was no evidence before it linking this defendant to any of the conduct complained
Whether the words used actually constituted incitement will depend upon the atmosphere and circumstаnces disclosed by the evidence. This issue cannot be determined on this motion. It is factual in nature and it is common knowledge that certain words spoken in a certain atmosphere or under certain circumstances may be in jest while in and under others may support a criminal charge and conviction. The conduct and words have to be tested and weighed in the light of the circumstances involved. This can only be determined at trial.
The court is satisfied that the wording of the sections of the statutes with which wе are here concerned is not indefinite, uncertain or overbroad and follows the general standards set forth in the cases cited by defendant for such statutory language. The statute is a general restatement of the offense as it existed at сommon law and which has been a part of the law for a very long period of time. The cases cited by defendant in her brief relate to accepted constitutional rights and standards and the general limitations thereof. The court is satisfied that this stаtute meets those standards and the accepted limitations of such rights.
The court finds the statutes to contain reasonable constitutional limitations on the rights referred to and involved. The motion to dismiss the indictment is denied.