149 A. 61 | N.J. | 1930
This is an appeal from a judgment of the Supreme Court, affirming, on certiorari, an affirmance by a Common Pleas judge of the conviction of prosecutors for violation of a city ordinance denouncing, among other things, the act of being "present in any house, room, or apartment * * * wherein betting * * * or gaming * * * *437
for money or valuables is allowed or carried on." Such is the material language of the purview; there is a proviso, which will be considered later on. The section of the ordinance is reproduced entire in the Supreme Court opinion, as is also the language of the complaint and in part that of the conviction. This last is incorrectly quoted, however, by the Supreme Court, the word "not" having crept in by some clerical error.
The opinion of the Supreme Court reads for a dismissal of thecertiorari on the ground that the Common Pleas judge had no jurisdiction to entertain the appeal, but we think the conviction should be affirmed on the merits, and that a dismissal on the theory advanced in the opinion of the Supreme Court would have been erroneous. That theory, as we understand it, is that, inasmuch as the statute of 1908 (Pamph. L., p. 442; Comp.Stat., p. 1868, pl. 145b) providing for a summary review by a Supreme Court justice or a judge of the Common Pleas, of a conviction before a magistrate for the violation of a municipal ordinance, prescribes that if the justice or judge finds the proceedings and conviction to be illegal, he may set aside the same and "order the discharge of the person so convicted from custody," its scope is limited to cases in which such defendant is actually in custody; and as the prosecutors in this case were not in custody when the judge of the Common Pleas reviewed the conviction, he was without jurisdiction in the premises. Upon the filing of this opinion, there was an application for rehearing in which it was pointed out that although the argument oncertiorari to the affirmance of the Common Pleas judge had been predicated on the act of 1908, supra, it was also supported by the act of 1895 (Pamph. L., p. 764), reprinted in the compiled statutes under the title of "Certiorari." Comp. Stat., p. 408,pl. 16. This act says nothing about discharging from custody, but provides simply that the reviewing court may set aside the judgment and proceedings if said court *438 shall find the same to be illegal. The Supreme Court refused a rehearing without stating any reason, and was doubtless justified in that refusal because the prosecutors failed to invoke the act of 1895 in the first instance. However, we are not particularly concerned with this phase of the matter; for the final clause of the supplement of 1908 to the Criminal Procedure act (Comp.Stat., p. 1868), interpreted by the Supreme Court as restrictive to cases in which there is a sentence of imprisonment, is in our view merely incidental to complete relief by the method of review provided. If the interpretation of the Supreme Court is adopted, it will gravely affect by analogy several cognate statutes of general importance, in the administration of which no such view, so far as we are aware, has ever been suggested.
The rule is, of course, elementary and fundamental that at common law a summary conviction was reviewable only bycertiorari; and that rule still obtains to-day except that in certain cases and for greater convenience and expedition, the legislature has undertaken to provide an intermediate review which, however, is itself subordinate to the writ of certiorari
issuing out of the Supreme Court by virtue of its constitutional prerogative. Newark v. Kazinski,
In view, therefore, of the matters just stated, we are clearly of the opinion that when in 1908 the statute providing for a summary review by a Supreme Court justice or a judge of the Common Pleas from any conviction of this character was annexed to the Criminal Procedure act by way of supplement, the inclusion of the final clause about discharging a person so convicted from custody was, as we have already intimated, by way of enhancing the remedial value of the statute, and not by way of any limitation of its scope; and this view is fortified by the fact that precisely the same language is to be found in section 36 of the Motor Vehicle act of 1906 (Comp. Stat., p. 3442), relating to offenses against that act, for which the punishment by section 35 is a fine or imprisonment in many cases; and that the same language has been carried into the Motor Vehicle act of 1921.Pamph. L., p. 685, § 35.
From all this we conclude that the judge of the Common Pleas in the case at bar had jurisdiction either under the act of 1895 or the act of 1898, to review the conviction in the recorder's court, and that such review was before the Supreme Court for decision upon the merits, which we now proceed to consider.
The first point made for prosecutors is that the complaint does not sufficiently set forth the title of the ordinance. It describes the ordinance as "An ordinance to prohibit gaming and the keeping of gaming houses in the city of Paterson, and to provide for the punishment thereof," passed August 19th, 1899, and approved the same day, and the amendments thereof." The point seems to be that the title of the amending ordinance should have been recited, because the offense denounced and its punishment are both comprised in the *441
amendments. But it is a familiar principle in relation to statutes that an act and its supplements are to be considered as one law. Van Riper v. Road Board,
The next point is that the offense charged is a crime, and that the board of aldermen of Paterson had no authority to make it cognizable in a summary proceeding because of the constitutional provision requiring action by a grand jury; and the Supreme Court case of State v. Green,
The next point is that "the ordinance is unreasonable and contrary to the rules of the common law." Under this it is argued that the ordinance imposes on the accused the burden of proving his innocence. It imposes no burden except that very common in such cases, where there is a proviso constituting an exception to the general language of the purview. The settled rule is that where the proviso or exception is not in the enacting clause, but in a subsequent clause, the complaint need not aver, nor need the prosecution prove, that defendant is not within the exception, but defendant is required to bring himself within such exception and has the burden of proving that. State v. Terry,
Finally it is claimed that the evidence was not legally adequate for conviction. It showed that the place was habitually used for gaming, that defendants were playing a game with dice and cards, that there was money on the tables, and that when the place was raided the defendants made a rush to escape. Such facts at the least would put them on their defense.
While the Supreme Court erred in saying that the writs ofcertiorari should be dismissed on the ground that the judge of the Common Pleas was without jurisdiction to review the conviction, the judgment affirming the action of the said judge was right. Consequently, the views we have above expressed lead us to affirm the judgment of the Supreme Court, though for a different reason, and also to affirm the judgment of the Common Pleas judge upholding the conviction. Seaman v. Strollo,
For reversal — None.