178 A. 632 | N.J. | 1935
By this certiorari the prosecutor challenges the judgment of conviction, entered in the Passaic County Court of Special Sessions, upon a complaint charging that, on June 23d 1934, he drove and operated a motor vehicle, on a public highway of the city of Paterson, while under the influence of intoxicating liquors, "in violation of section 14, subdivision 3 of the amended penal laws of 1926, chapter 152, in violation of section 14, subsection 3, of an act * * *."
The complaint was made upon one of the regulation printed forms provided by the motor vehicle department; and an ink line was drawn through the following clause, which, on the printed form, was a continuation of the quoted sentence: "providing for the operation and licensing of motor vehicles in the State of New Jersey, comprising chapter 208, laws of 1921, amended to date, and supplements thereto, amendments therewith affecting the use of motor vehicles." Apparently, the draftsman conceived that the amendment of section 14 of the act, effected by chapter 152 of the laws of 1926 (Pamph. L. 1926, p. 254), was applicable. But this section was again amended by chapter 171 of the laws of 1931. Pamph. L. 1931, pp. 347, 367; N.J. Stat. Serv. 1931, § 135-49 to § 135-82. The only change made by the last amendment was the inclusion of a provision that one convicted of a previous violation of that section need not be charged as a *107 second offender in the complaint, in order to subject him to the punishment therein provided for a second offender.
The complaint was made in the Recorder's Court of the city of Paterson; and prosecutor was convicted of "driving an automobile while under the influence of intoxicating liquors," in violation of section 14, subdivision 3, of the Motor Vehicle act of 1921 (Pamph. L. 1921, p. 643), and of chapter 152 of the laws of 1926, and the amendments thereof. There was a trial de novo in the Passaic Special Sessions, as provided by chapter 97 of the laws of 1933 (Pamph. L. 1933, p. 200; N.J. Stat. Serv. 1933, § 135-79 (a), (b), (c); and prosecutor was again convicted of violating subdivision 3 of section 14 of the Motor Vehicle act of 1921, "amended by chapters 151 and 152 (Pamph. L. 1926), and the various acts supplementary thereto and amendatory thereof."
The first insistence of prosecutor is that the court below lacked jurisdiction "because the complaint was defective, in that (a) it was not made within the statutory time; and (b) it did not charge the defendant with any violation or with violating any existent law."
The first of these grounds relates to the acquisition of jurisdiction of the person and not of the subject-matter, and is devoid of merit. The complaint was not made until the second day after prosecutor's arrest; and it is insisted that, in virtue of chapter 63 of the laws of 1933 (Pamph. L. 1933, p. 120; N.J.Stat. Serv. 1933, § 135-82), providing for the temporary detention of one charged with a violation of the section in question for a period not to exceed twenty-four hours from the time of his arrest, jurisdiction over the person was not acquired. The point was not made below, either in the Special Sessions or in the Recorder's Court, and is not of a character that merits consideration when raised here for the first time.State v. O'Leary,
And the second reason is likewise untenable. The point was not raised below, and will not therefore be considered here, unless it is of such a nature that the complaint, on its face, exhibits a lack of jurisdiction of the subject-matter. This is not the case. The specification expressly charged the operation of a motor vehicle while under the influence of intoxicating liquor, in violation of section 14, subdivision 3, of the Motor Vehicle act. It may very well be that the drawing of an ink line through the clause referred to was a mere clerical error on the part of the draftsman. But, in any event, the accused was not left in doubt either as to the nature of the offense charged or the section of the Motor Vehicle act claimed to have been violated; and, as pointed out, it was one that was patently within the jurisdictions of the tribunals below, original and appellate, respectively. The amendment of section 14, subdivision 3, of the act, effected by chapter 171 of the laws of 1931, supra, did not, as stated, in any wise change or affect the substantive offense of driving *109 a motor vehicle while under the influence of intoxicating liquor or narcotic or habit-producing drug, nor the punishment to be imposed upon a first offender. It cannot therefore be said that the charge made was not the offense denounced by the existing statute, or that the accused was not fully informed of the nature of the offense laid to him. This is not the case of a complaint charging the violation of a non-existent statute. Here the defendant was fully advised as to the statute invoked; and he was tried and convicted upon a complaint clearly charging a violation of that statute, without objection to its sufficiency. CompareState v. Rosenblum, supra. In the cited case, also, the complaint alleged the violation of this section in the original act, without reference to a later amendment thereof.
Our court of last resort has held that it is not essential that the statute claimed to have been violated should be specifically mentioned in the complaint. Jamieson v. Martin,
It is next urged that chapter 97 of the laws of 1933, supra, contravenes article IV, section VII, subdivision 4, of the state constitution, providing that "every law shall embrace but one object, and that shall be expressed in the title." *110 This is entitled a supplement to the Motor Vehicle act of 1921,supra (setting out the title of that statute in full, and its effective date); and it is therein provided that the appellate jurisdiction theretofore exercised by the Courts of Common Pleas in the several counties of the state, in prosecutions for violations thereof, "is hereby transferred to and vested in and shall hereafter be exercised by the courts of special sessions in the respective corresponding counties." It provides for the trial of the issue de novo, and grants to the sessions broad powers of amendment with respect to the complaint. This statute was obviously designed to make effective the penal provisions of the statute, and to prevent miscarriages of justice by reason of deficiences in form that do not affect the merits.
It is said that this supplemental enactment, to comply with the mandate of the constitution, should have taken the form of an amendment to the act creating the Courts of Special Sessions, or that the title should have "some such index as would reveal the true intent." This claim is not well-founded. The same criticism was directed to the original act of 1921, supra, in so far as it conferred like appellate jurisdiction upon the Courts of Common Pleas; and this court held that the authority in question was embraced in the titular clause, "prescribing and regulating process and the service thereof and proceedings for the violation of the provisions of the act and penalties for said violations."Caruso v. Porter,
Lastly, it is maintained that the record of conviction in the Recorder's Court is defective, in that the "substance of the testimony before the recorder is not set forth." It suffices to say, as to this, that there was a trial de novo in the Court of Special Sessions; and the defendant is entitled to a review of that judgment only. Section 3 of chapter 97 of the laws of 1933,supra, provides for a trial de novo in the sessions, and directs that tribunal, in the event of a conviction, to "impose the penalty prescribed by the act to which this is a supplement, its amendments and supplements, which conviction and sentence shall supersede and nullify the conviction and judgment in the court below." See, also, State v. McCarty,
It results that there was no error calling for reversal of the judgment of the Court of Special Sessions.
Judgment affirmed, with costs. *112