Curtis v. Joyce

90 N.J.L. 47 | N.J. | 1917

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 cause. It is entitled Charles E. Joyce v. The Judge of the Court of Common Pleas of Burlington County. All that the judge had to do with the case 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 and 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 are printed, but as the complainant, defendant in certiorari, makes no objection, we deal with the reasons set forth in the prosecutor’s brief.

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

As to the alleged bias of the recorder, we agree with the judge of the Common Pleas that the prosecutor should have challenged before the case was heard, as provided by sectioar 225 of the Practice act. Comp. Stat., p. 4122. Although this is a section of the Practice act, it enacts a rule which should govern in all courts. It would be intolerable to allow a litigant to speculate oar the result of a case, and raise a question of jurisdiction only after 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 question that the prosecutor was deprived of liis constitutional rigdit to a (rial by jury. This question is similar to that discussed in the iiodgers case just decided, and it would he interesting to consider 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.