
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY JOHNSON, PLAINTIFF IN ERROR.
    Argued November 10, 1905
    Decided February 26, 1906.
    1. An indictment under section 193 of the act to regulate elections (Pamph. L. 1898, p. 237) which, as applied to primary elections under section 33 of the primary election supplement (Pamph. L. 1903, p. 603), is not open to attack on the ground that section 193, making it a misdemeanor to take and carry into a polling-place intoxicating liquors, is invalid as not being within the title of the act.
    2. The act and supplement both held to be constitutional, following the decision of this court in Hopper v. Stack, 40 Vroom 562.
    
      3. Where a witness for the state had failed to identify the liquor drunk in the election booth as beer, he was then asked if he had not testified before the grand jury that it wds beer. The witness was permitted to answer over objection affirmatively that he did. Held, that this was not error-, the ruling being within the trial judge’s discretion.
    4. Nor was there error in permitting the witness to testify, over objection, that someone engaged in drinking the liquor called it “good beer,” it appearing, that the defendant was present at the time.
    On error to Atlantic Sessions.
    Before Gummere, CiriEE J ustice, and Justices Hendrickson and Pitney.
    For the plaintiff in error, John C. Reed and Gilbert Collins.
    
    For the state, Pdward D. Duffield, assistant attorney-general.
   The opinion of the court was delivered hy

Hendrickson, J.

The defendant was convicted in the Atlantic Quarter Sessions upon an indictment charging him with having, on, &c., at, &c., lcnowingfy, willfully and unlawfully taken and carried into the polling place of the second precinct of the. second ward of Atlantic Citjq where a primary election was then being held for delegates to the state "and county conventions, &c., and with having, in the presence of the voters, placed upon the table, near the ballot-boxes, spirituous, vinous, malt and intoxicating liquors, contrary, &c. The indictment was based upon section 193 of the Election law (Pamph. L. 1898, p. 237), which is, by section 33 of the primary election supplement (Pamph. L. 1903, p. 603), made applicable to primaiy elections.

The defendant, by his writ of error, has caused the entire record of the trial to be brought before us for review, and has assigned errors thereon and specified his grounds for reversal. A motion to quash was made and denied before the jury was sworn, and we are now asked to reverse the judgment because of the alleged insufficiency of the indictment. The grounds of the alleged infirmity of the indictment are, first, that the Primary Election law of 1903 is unconstitutional. The court has already sustained the constitutionality of this act in Hopper v. Stack, 40 Vroom 562, and we will follow that decision in this case; second, that section 33 of that act violates the constitutional interdict against legislation by reference to an existing law. But the validity of the act in this respect was also sustained in Hopper v. Stack, supra, and that decision will govern. Nor do we think the indictment invalid on the ground that it is not sufficiently clear and specific.

An additional ground was raised that section 193 of the act to regulate elections was not within the title of the act. This is untenable. The plaintiff in error does not question but that penal provisions may be yiserted by way of sanction in any law, but contends that the section here in question is not fairly within the range of the subject-matter of the act. But we think it is. For it is a provision plainly intended to subserve the orderly conduct of an election. See 26 Am. & Eng. Encycl. L. (2d ed.) 588.

Another ground of error alleged is that the court below admitted illegal evidence. A witness for the state under examination had failed to identify the liquor drank in the booth as beer. The witness was then asked “if he had not testified before the grand jury that it was beer that was in one or the other of the bottles.” The witness was permitted to answer over objections affirmatively that he did. The objections were that a party could not thus interrogate his own witness, and that the' question was leading. The learned trial judge regarded the situation as one of surprise, and on that ground admitted the question, as we think, rightly. 3 Jones, B. W., Ev. 858. The allowance of a leading question was a matter in the discretion of the court. There was no error in the admission of the question objected to.

Nor was there error in permitting the same witness, over objection, to testify that someone drinking the liquor called it “good beer.” This is objected to as hearsay. But the case shows that the defendant was present at the time. Whether the defendant heard this or not was a question for the jury. If he did hear, and was silent, his failure to disclaim was a circumstance for the jury. The legality of testimony of this character was settled by the Court of Errors and- Appeals, in State v. Rosa, in a recent decision. The Chief Justice, in delivering the opinion of the court, cited, in support of the decision, Donnelly v. State, 2 Dutcher 601.

It is further urged that there was error in the refusal of the trial judge to direct an acquittal at the end of the whole case, counsel citing Burnett v. State, 33 Vroom 510, and State v. Jaggers, 42 Vroom 281, in support of the practice, but after an examination of the testimony, we think there was sufficient evidence to be submitted to the jury in support of the charge.

Nor do we find any err eg; in the judge’s charge to the jury. We do not find that the judge directed the jury that certain facts stated were in fact proven, but that he named certain facts only as circumstances relied upon by the state in support of the charge. There was no error in this. The result is that the judgment below must be affirmed.  