The plaintiffs in error were convicted in the Essex County Quarter Sessions of keeping and maintaining a disorderly house in the city of Newark. The judgment on this conviction was brought into the Supreme Court for review, by a writ of errоr, and that court affirmed the judgment.
The judgment is now beforе us for review on a writ of error to the Supreme Court.
We have examined and considered the questions raised by the assignments of errors, and finding no error harmful tо the . plaintiffs in error in the record, we have reached the result that the judgment should be affirmed on the opinion of the Supreme Court, but with the following correction:
The Supreme Court, in stating the legal rule of еvidence relating to the nature of the proоf required to establish the “evil name and fame” of thе frequenters of the resort kept by the plaintiffs in errоr, said: “Whether the frequenters of the house were of evil name and fame, and of dishonest conversаtion, was a question of fact to be determined, not alone by their general reputation, but by their cоnduct and conversation while in the house.” We deеm this to> be an inaccurate statement of the lеgal rule, so far as it applies to the matter of evil
Testimony of conduct and conversation, in the present сase, was admissible to establish the charactеr of the house because it. came within the scоpe of the acts of misconduct charged in thе indictment, but had no probative force upon the question whether such frequenters of the house were of evil ñame and fame.
Where one of the elements of disorder charged in the indictment is that of permitting illegal practices or conduct to bo habitually carried on in a place of public resort, as was the case in State v. Williams, 30 N. J. L. 102, it is proper to prove the specific acts and conduct of the frequenters of the place. State v. Schlosser, 85 Id. 166; affirmed by this court in 86 Id. 374.
The charаcter of the proof necessarily depends upon the nature of the nuisance charged in thе indictment. Linden Park Horse Association v. State, 55 N. J. L. 557; State v. DeLorenzo, 80 Id. 500.
It is obvious that in principle it can make no difference whether or not the illegal practices or conduct habitually carried on are by persons of good or evil repute, in order to constitute an indictable offence, where thе nuisance charged in the indictment is that of habitually permitting illegal practices and conduct to be carried on in a place of public resort.
The judgment will be affirmed.
For affirmance—The Chancellor, Chief Justice, Garrison, Swayze, Parker, Minturn, Kalisch, Black, Yre-DENBURGH, TERHUNE, HEPPENIIEIMER, WILLIAMS, TAYLOR, JJ. 13.
For reversal—Hone.