$55 only; that, if not altered, the plaintiff | the Lehigh Valley Railroad Company, the should recover $550, with due allowance for National Storage Company, J. A. Middleton, interest. It is therefore manifest that the verdict for the defendant was contrary to the law of the case as declared in the charge of the court, and must be set aside for that reason. The other reasons assigned we have not considered. The rule will be made absolute. and F. L. Blendinger, charging them with manslaughter in the felonious killing of one James H. Doherty. On application made in behalf of the defendants, a bill of particulars was ordered to be furnished setting forth in detail the acts of the defendants, or any or either of them, which the state claimed resulted in the killing. It is charged in this bill that the death of Doherty resulted from the blowing up of certain cars at the terminus of the Lehigh Valley Railroad in Jersey City, said cars being loaded with excessive quantities of highly explosive ammunition, and that the explosion was due to the gross and flagrant negligence of the Lehigh Valley Railroad Company. Thereupon the defendants applied to remove the indictment into this court; and, this having been done, a The ground of objection to indictment pre-motion was made to quash. After hearing, sented upon motion to quash is, under Criminal the court denied the motion, and the record Procedure Act, § 44, entitled to be considered was remanded to the Hudson sessions for upon motion in arrest of judgment made after trial. When the case was moved at the sesacceptance of plea of non vult. (92 N. J. Law, 261) STATE v. LEHIGH VALLEY R. CO. (Supreme Court of New Jersey. Feb. 25, 1919.) 1. CRIMINAL LAW 970(1)—MOTION IN ARREST-OBJECTION TO INDICTMENT. 2. CRIMINAL LAW sions, the prosecutor of the pleas, after stat 970(1)-MOTION IN AR-ing that he had no evidence which would BEST OF JUDGMENT MATTERS WHICH MAY Where only ground upon which motion to quash was rested, so far as plaintiff in error is concerned, was that a corporation aggregate could not be guilty of manslaughter, that is the only matter which can be raised on motion in arrest of judgment in view of Criminal Procedure, § 44. justify him in asking for a conviction of the National Storage Company, or of the individual defendants, asked leave to nolle pros. the indictments against them, and, this was granted. The Lehigh Valley Railroad Company thereupon pleaded non vult., and, this plea being accepted, a fine of $1,000 was imposed upon it, together with the costs of prosecution. When sentence was moved by the prosecutor of the pleas, the counsel for the defendant interposed a motion in arrest of judgment. That motion was based upon two grounds: First, that an indictment for manslaughter will not lie against a corporation aggregate; and, second, that under the bill of particulars it appeared that the offense Error to Court of Quarter Sessions, Hud- committed by the defendant was a mere vioson County. lation of a statute regulating the transporta 3. CRIMINAL LAW 972-ARREST OF JUDGMENT-CAUSE APPEARING UPON RECORD. Unless bill of particulars is a part of indictment, facts set out in the bill are not available on motion in arrest of judgment, since a judgment will be arrested only for some cause appearing upon the record. The Lehigh Valley Railroad Company and tion of explosives, and that the violation of others were indicted for manslaughter. Mo- that statute could form no basis for the prestion to nolle pros. indictment against un-ent indictment, the statute prescribing, as named defendants was granted, but motion counsel claimed, the sole measure of liability in arrest of judgment was denied defendant named, and it brings error. Affirmed. See, also, 90 N. J. Law, 372, 103 Atl. 685. Argued November term, 1918, before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ. for such violation. The motion in arrest of judgment was refused, and the defendant now assigns this refusal for error. In the case of State v. Alderman, 81 N. J. Law, 549, 79 Atl. 283, the Court of Errors, in determining the effect of a plea of non vult. upon the defendant's legal status, declared that when a defendant had so pleaded, and afterward, when arraigned for sentence, moved in arrest of judgment on the ground of the insufficiency of the indictment, he cannot upon such motion avail himself of objections which, in the absence of his plea, would have been proper matters for presenGUMMERE, C. J. The grand jury of Hud-tation by motion to quash; pointing out that son county presented an indictment against not only was this the rule at common law, Gilbert Collins and Lindley M. Garrison, both of Jersey City, for plaintiff in error. Pierre P. Garven, Prosecutor of the Pleas, of Bayonne, George T. Vickers, Asst. Prosecutor of the Pleas, of Jersey City (John F. Drewen, Jr., of Jersey City, of counsel), for the State. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes but that this rule had been emphasized by the forty-fourth section of our Criminal Procedure Act (2 Comp. St. 1910, p. 1834), which provides that— "Every objection to any indictment, for any defect of form or substance apparent on the face thereof, shall be taken, by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards." The plain intent of the rule thus enunciated is that a motion in arrest of judgment, if it is based upon some fatal defect apparent upon the face of the indictment, cannot prevail unless those defects have been pointed out before trial on a motion to quash, or by a plea in abatement, or on demurrer. [1] The first ground upon which the motion was rested in the present case, namely, that a corporation aggregate is not indictable for manslaughter, was presented on the motion to quash, and is, consequently, entitled to be considered on the later motion; but, as has already been stated, it was held by this court that this ground of attack upon the indictment was without substance, and for the reasons stated in our opinion in 90 N. J. Law, 372, 103 Atl. 685. We see no reason to change the view expressed by us in that opinion. Defendants appealed from a judgment being no disputed question of fact, this court against them in a district court; and, there reversed the judgment below and ordered a judgment final in this court in favor of the defendants. Held, that in such a case the appellate court ought not, in the exercise of discretion, withhold from the defendants, the prevailing party, the costs of the appeal, under a stataction at law shall be entitled to costs, unless ute providing that the prevailing party in any the court should order otherwise. Replevin by Jacob Frank against Joseph J. Daily and others, trading as Chelsea Tire & Repair Company. Judgment for plaintiff, and defendants appeal; and, after final judgment for defendants, they move for an allowance of costs. Motion granted. See, also, 105 Atl. 9. Argued February term, 1919, before BERGEN, KALISCH, and BLACK, JJ. Lee F. Washington, of Atlantic City, for the motion. Endicott & Endicott, of Atlantic City, opposed. [2] The second ground upon which the motion in arrest of judgment was based, name ly, that the statute regulating the handling of explosives by a common carrier while in transit provided the only penalty for a violation of its provision, cannot now be con- BERGEN, J. The defendants having seizsidered. If the bill of particulars be con- ed an automobile for a lien for repairs under sidered as constituting a part of this indict-“An act for the better protection of garage ment, then-as the only ground upon which keepers and automobile repairmen" (P. L. the motion to quash the indictment was rested, so far as the plaintiff in error is concerned, was that a corporation aggregate could not be guilty of manslaughter-that is the only matter that can be raised now, under the rule promulgated in the Alderman Case. It is true that the effect of the statute was presented as a ground for quashing the indictment, but this was only done by the National Storage Company, and the individual defendants. 1915, c. 312), the plaintiff, the owner, brought an action in replevin in a district court, and recovered, from which result in the trial court defendants appealed. There was no dispute as to the facts, and the legal propositions advanced by plaintiffs being, in the opinion of the Supreme Court, unsound, it reversed the judgment, and following Taylor v. Reed, 68 N. J. Law, 178, 52 Atl. 579, and Sullivan v. Visconti, 68 N. J. Law, 543, 53 Atl. 598, ordered judgment final to be enter who now apply for an order allowing costs of the appeal in this court. [3] On the other hand, if the bill of partic-ed in that court in favor of the defendants, ulars is no part of the indictment (and we do not consider that it is), it may be contended that the rule in the Alderman Case has In Lehigh Valley R. R. Co. v. McFarland, no application. Conceding this, the plain- 44 N. J. Law, 674, the Court of Errors and tiff in error is not benefited thereby; for Appeals held that, there being no statute unless it is a part of that pleading, the facts giving costs on error, they were not recoverset out in it cannot be availed of on a motion able, notwithstanding a rule of the court proin arrest of judgment; for a judgment will vided that the prevailing party should be be arrested only for some cause appearing considered as recovering costs unless the upon the record. Powe v. State, 48 N. J. court, in express terms, adjudged to the conLaw, 34, 2 Atl. 662; 1 Chitty, Crim. Law, p. trary, holding that the rule only applied to 661. cases where costs were recoverable by statThe judgment under review will be af- ute. But since that case was decided the firmed. Legislature has enacted (P. L. 1911, p. 756): -SOLDIERS AND SAILORS. "The prevailing party in any action, motion | 3. ELECTIONS 227(8)-PARTIAL INVALIDITY or proceeding in the courts of law of this state shall be entitled to costs, except where otherwise provided by law, and unless the court or judge before whom such action, motion or proceeding shall be taken shall order otherwise." Thus we now have a statute which allows the prevailing party costs unless the court shall exercise its discretion to withhold them. This statute has been construed in Lynch v. Public Service Ry. Co., 83 N. J. Law, 783, 85 Atl. 343, and it was there held that when the reversal is due solely to a mistake by the trial judge, and does not finally determine any issue, but leaves the parties where they were before the trial, it was a proper exercise of the power to withhold costs, and consequently it was determined that, where the reversal resulted in a venire de novo, costs of the appeal would not be awarded. In the case under consideration there was no venire de novo awarded, the parties were not left as they were before the trial, be cause the issues between them were determined, and a judgment final entered for the defendants. Certainly in such a case the defendants are a prevailing party, and under such circumstances the court ought not to exercise its discretion to withhold costs from the prevailing party. Under this statute the prevailing party is entitled to costs, unless this court shall otherwise order, and Where a local option referendum was held at a general election of officers, without compliance with P. L. 1918, p. 437, relating to soldiers' and sailors' votes, election will be held dum; matter of closing saloons being a matter vitiated only to extent of local option referenwhich can wait, while election of officers cannot. 4. ELECTIONS 278-CERTIORARI-LACHES. vember, one applying for a writ of certiorari Where an election occurred early in Noto review the election in January, on the ground that P. L. 1918, p. 437, relating to soldiers' and sailors' votes, was not complied with, was not guilty of laches, in view of fact that law allowed 30 days to count soldiers' vote, and that allocatur might well have been denied during first 30 days, on ground that soldiers' vote might turn the result the other way. Certiorari by John G. Scheible to review an election in the Borough of Hightstown under the Prohibition Act of 1918 (P. L. 1918, p. 14). Election held void. Argued February term, 1919, before PARKER and MINTURN, JJ. Harry Heher, of Trenton, for prosecutor. Hammond, of Trenton, and George S. HoAaron V. Dawes, of Hightstown, James bart, of Jersey City, for respondents. PARKER, J. The writ attacks the valid we are of opinion that in this case we should ity of a popular vote taken at the last gen not otherwise order. The motion is granted. (93 N. J. Law, 69) SCHEIBLE v. BOROUGH OF HIGHTSTOWN et al. (Supreme Court of New Jersey. March 4, 1919.) 1. ELECTIONS 74-SOLDIERS AND SAILORS NOTICE OF ELECTION. P. L. 1918, p. 437, relating to soldiers' and sailors' votes, applied to a local option referendum under the Prohibition Act of 1918, although vote was taken at a general election. 2. ELECTIONS 216-SOLDIERS AND SAILORS -NOTICE-SUFFICIENCY. P. L. 1918, p. 437, relating to soldiers' and sailors' votes, notice, etc., was not substantially complied with in a local option referendum at a general election, although secretary of state sent special agents to some of the military camps, and a bundle of ballots and other papers by mail to the commanding officers of the other camps, hoping that the ballots in some way would reach those for whom they were intended; it being necessary that officials should ascertain all the addresses possible in the neighborhood and to mail to soldiers the necessary matter, where War Department refused to give such addresses. The eral election on the question whether the sale of liquor should be prohibited thereafter in the borough of Hightstown. principal question in the case, and the only question requiring specific examination for the purposes of a decision, is that relating to the casting of the soldier and sailor vote. We have already had occasion to deal with this subject in the group of cases recently decided under the title of Miller v. Montclair, 108 Atl. 131, at the present term. In those cases, however, the election was called for a special day, and is known to the statWe sustained the ute as a special election. finding of the Chief Justice and other justices, sitting singly as a summary court under the statute, that the several elections must be set aside because of failure to com ply with the requirements of the soldiers' vote act (P. L. 1918, c. 150), but expressed no view with relation to the soldier vote at a local option referendum held at the same time and voted on the same ticket with the general election. Individual justices had intimated a distinction, as in the opinions of Mr. Justice Kalisch in the Holman Case, 104 Atl. 212, and the Lamb Case, 105 Atl. 448, the result in which we upheld a few days ago. For the first time, we think, this quesrelating to a local option ballot vot tion For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed on the day of general election is squarely presented as a necessary ground of decision. It comes up in a double aspect, viz.: (1) Is it necessary to the validity of the result of an election held at such a time that the requirements of the soldiers' vote act should be substantially complied with? and (2) if so, was there a failure of such substantial compliance? [1] On the first branch of the inquiry the result we reach is that the substantial compliance is a requisite to the validity of the vote even at a general election. The act itself makes no distinction in its mandate. By its express language it applies to general, special, and primary elections. And, as we observed in the Miller Case, the act disregards the doctrine of constructive notice even to some extent as to its own existence as a law, by requiring transmission to the soldier of a copy of the act, or printed directions how to cast a ballot thereunder, official or unofficial. We also held that failure of compliance was not a mere irregularity; and the fact that strict compliance was rendered impracticable by reason of the exigency of national regulations did not excuse the state and local authorities from the performance of the duties laid on them by the statute. As was said by Mr. Justice Bergen in deciding the case of Thompson v. South Brunswick (no opinion filed), in discussing the difficulty of carrying out the law, the fault is with the law, and not witn its construction. The absent voter was entitled either to a proper form of ballot and inclosing envelopes, or a copy of the law, or directions how to prepare and cast his vote, and, without either, "he had no notice such as the law intends he shall have of the character of the ballot he was entitled to prepare and use. The fact that the referendum was voted on, on the day of the general election, and at that election, does not, in our judgment, affect the force of this reasoning. It was said in Brown v. Street Lighting District, 70 N. J. Law, 762, 58 Atl. 339, that, where the time, place, and purpose of an election are fixed by public law, all voters must take notice thereof, etc. The learned justice who wrote that opinion did not have before him the soldiers' vote act, with the express requirements to which we have just called attention, and, moreover, it is to be observed that his language does not cover this case, for the time of the election on the local option is not fixed by public law in the sense he intended, but by the joint action of the Legislature and certain petitioners. A parallel case would be one where the Legislature has provided that on the day of general election the several municipalities through their respective electorates shall vote on prohibition; in other words, the time, place, on the face of the statute, without recourse to any aliunde information. We think the correct reasoning is found in that line of cases from other jurisdictions, cited in pros ecutor's brief, that when the question of an election vel non on a certain subject depends on the action, not only of the Legislature, but also of some other agency, such election, whenever held, is a special one, and the doctrine of the Brown Case does not apply. 22 L. R. A. (N. S.) 483, note. The Legislature might as well have designat ed some other day, as the second Tues day of December, for the referendum election in cases where the petition is signed by less than 30 per cent. of the voters. It seems quite clear that such an election would be special. The fact that the day of general election is designated was no doubt due to considerations of expense and convenience; whether there should be a vote at all on the day designated depends, as we have said, on the action of citizens, of which other citizens are not bound to take notice, as well as of the lawmaking body. [2] Concluding, then, as we do, that the requirements of the soldiers' vote law apply substantially to the same extent to a vote on local option taken at a general election as to a special election thereon, we take up the claim that there was no substantial compliance with them, and find it well founded. It appears that ballots were not mailed to the several voters, nor were copies of the laws nor voting instructions. As we understand the facts, the secretary of state sent special agents to some of the camps, and a bundle of ballots and other papers by mail to the commanding officers of other camps, reach those for whom they were intended. hoping that the ballots in some way would That the plan was not authorized by the act is perfectly plain. That it failed of its purpose is indicated by the fact that a comcame back. No doubt the secretary of state paratively insignificant number of ballots did the best he could, but this was not enough. Evidently he could not obtain the individual names and addresses from an overburdened War Department and in the face of rules denying information. But the names were no doubt ascertainable in the borough, most of them, at all events, and the military addresses in care of the respective organizations were or should have been procurable. If the referendum was of paramount importance, it justified a special effort to get the ballots and voting information to the soldiers and sailors, and no special effort of the kind intimated seems to have been made. [3] The counter argument that the general election for local officers and members of the Legislature must also be considered vitiated does not appeal to us. The distinction and the reason for it are forcibly pointed 4. FALSE PRETENSES 38-VARIANCE-DATE OF CHECK. sitting in the Montclair Case. His remarks | under the rule about statements made in the are too long to quote here, but the point is presence of a party which he fails to controvert that the overturning of a governmental elec- at the time. tion, as distinguished from what he significantly calls a sociological one, is a matter to which other considerations of grave public consequence apply, particularly the importance of having officers to carry out public affairs. The special question now under consideration has no such features. Wheth-5. FALSE PRETENSES 7(4)-CHARACTER OF er the saloons shall close to-day, or await another election, at which all shall have their chance to vote, is a matter concerning the general public welfare, like the abolition of a smoke nuisance, for example, but not striking at the administration of government in any direct way, as in the other case. On the whole, our conclusion is that the referendum was vitiated by the totally inadequate provision for securing the absentee vote. In prosecution for obtaining money by inducing B. to purchase stock upon representation that corporation was solvent, variance in date of check involved was immaterial. REPRESENTATIONS. In prosecution for obtaining money by inducing B. to purchase stock upon representations [4] Laches is urged. The election occur- that corporation was solvent, the court was not red early in November. The writ was al- required to add to charge on insolvency a relowed in January. If prosecutor had appli-quested comment on the evidence. ed immediately after election, allocatur 7. FALSE PRETENSES 38-PROOF OF ALL might well have been denied on the ground PRETENSES CHARGED-NECESSITY. that the soldier vote might turn the result the other way. The law allowed 30 days to count that vote; so the delay was something over a month. We are unwilling to say that prosecutor should be barred on this account. We think, however, that no costs should be allowed to either party. In prosecution for obtaining money under false pretenses, where there was evidence for the jury of the representations charged inducing the payment, their falsity and defendant's knowledge thereof, motion to direct acquittal at close of state's case was properly denied. 3. CRIMINAL LAW 407 (1)—ADMISSIONS STATEMENTS MADE IN PRESENCE OF ACCUSED. The state was not bound to prove all false pretenses alleged, and a reasonable doubt as to one would not warrant acquittal. 8. CRIMINAL LAW —1129(3)—SPECIFICATIONS OF ERROR-Charge. Specifications that charge was in divers other particulars erroneous and inadequate, and that court failed to charge properly upon questions of evidence of good character, were insufficient. 9. CRIMINAL LAW 829(1) INSTRUCTIONS There was no error in refusing a charge covered by the main charge. Error to Supreme Court. Linwood Haines was convicted of obtain ing money under false pretenses. Judgment was affirmed by the Supreme Court and defendant brings error. Affirmed. On error to the Supreme Court in which the following per curiam was filed: "The defendant was convicted of obtaining money under false pretenses from one Blatchley, the charge in the indictment being that he induced Blatchley to purchase stock in a corporation, called 'Linwood Haines, Limited,' upon the representation that said corporation was solvent and purchased for cash at wholesale, was in a sound financial condition, and that its shares were a safe and sound investment, which statements were false to defendant's knowledge. "The case is brought up on strict writ of error, and also under section 136 of Criminal ProceIn prosecution for obtaining money by in- dure Act (2 Comp. St. 1910, p. 1863) by certifiducing B. to purchase stock of a corporation up-cate of the entire proceedings at the trial. There on representations that corporation was solvent, are no exceptions in due form to call for its testimony of a witness that certain statements as examination in the former aspect, but the causes to amount of stock outstanding, etc., were read for reversal are identical with the assignments in defendant's presence were properly admitted of error. They are 21 in number. For other cases see same topie and KEY-NUMBER in all Key-Numbered Digests and Indexes |