Curtis v. Joyce

Feb 21, 1917
Versions:99 A. 932
5 Gummere 47
90 N.J.L. 47
1917 N.J. Sup. Ct. LEXIS 86

The opinion .of the court was delivered by

Swayze, J.

Before dealing with the questions raised -in this case, we think it advisable to call ‍​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌​‌‌​​​‍attention to the method of entitling the сause. It is entitled Charles E. Joyce v. The Judge of the Court оf Common Pleas of Burlington County. All that the judge had to do with the сase was to hear it ‍​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌​‌‌​​​‍on review of the proceedings had before the recorder. While the writ is directed to him, he is no party to the cause *48and should not be so treated. The case should be entitled under ‍​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌​‌‌​​​‍rule 15 as it was before the recorder, G. Howard Curtis v. Charles E. Joyce.

No reasons аre printed, but as the complainant, defendant in certiorari, makes ‍​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌​‌‌​​​‍no objection, we deal with the reаsons set forth in the prosecutor’s brief.

The procеeding is under the supplement of 1913 to the Disorderly Persons аct. The complaint charges that Joyce operated and drove an automobile oar the “highwаy of the street of Mount Holly known as High or Main street while undеr the influence of intoxicating liquors.” He was convictеd of having operated an autoanobile oar High or Main street in the town of Mount Holly, township of Northamрton, county of Burlington, iar the State of New ‍​​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​‌‌‌‌​‌​​​​​‌​‌‌​​​‍Jersey, while uаrder the influearce of intoxicating liquor. We think this is enough to show that the offearce was committed upoаr the public street or highway. The complaint chargеs that it was on the highway of (evidently a misprint for “or”) the street known as High or Maiar street, and although the coarviсtion. does not use the word highway, we think there is a presumption that the High or Maiar street of a town is a public strеet.

As to the alleged bias of the recorder, we аgree with the judge of the Common Pleas that the prosecutor should have challenged before the cаse was heard, as provided by sectioar 225 of the Practice act. Comp. Stat., p. 4122. Although this is a sеction of the Practice act, it enacts a rulе which should govern in all courts. It would be intolerable to аllow a litigant to speculate oar the result of a case, and raise a question of jurisdiction only aftеr the decision. If the prosecutor did not know the alleged bias at the time, it may be his misfortune, but it is a misfortuare arising out of a waart of-knowledge that it was his duty to acquire if he wanted to profit by it.

We think the coarviction is sufficient in form. This disposes of the reasons argued. The eighth reason, if we array judge from'the respondent’s brief, raises the quеstion that *49the prosecutor was deprived of liis constitutional rigdit to a (rial by jury. This question is similar to that discussed in the iiodgеrs case just decided, and it would he interesting to considеr whether the same rule would apply to a case whore the only proof was that the defendant drove an automobile on a public street while he was under the influence of intoxicating liquor. AVo are precluded from dealing with this question as the prosecutor has abandoned his eighth mason.

The judgment must he affirmed, with costs.