Bindernagle v. State

• Decision Date: 07 June 1897
• Parties: BINDERNAGLE v. STATE.
• Court: New Jersey Supreme Court

37 A. 619

60 N.J.L. 307

BINDERNAGLE

v. STATE.

Supreme Court of New Jersey.

June 7, 1897.

(Syllabus by the Court.)

Error to court of quarter sessions, Hudson county; Hudspeth, Judge.

Philip Bindernagle was convicted of keeping a disorderly house, and brings error. Affirmed.

Argued February term, 1897, before DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Allan L. McDermott, for plaintiff in error.

Charles H. Winfield, for the State.

LIPPINCOTT, J. The plaintiff in error, defendant below, was indicted for keeping a disorderly house in the township of Union in the county of Hudson. The indictment charged that the defendant kept a place in that township in which he permitted people to engage in betting and wagering on the events of races of horses, mares, or geldings. The indictment was presented at the April term, 1896, and the offense was charged to have been committed between March 1, 1895, and the time the indictment was presented. No objections were taken to the form of the indictment before the trial, and no errors have been assigned drawing in question its validity.

The evidence introduced, and, as it stands, undisputed, shows at this place there are three buildings. One is a brick building in which the defendant kept a saloon. The main floor contained a barroom; and to the north of the barroom, and connected with it, was a restaurant; still to the north of the restaurant, and immediately adjoining it, was a long, frame building; and from the building a piazza ran along the front of the saloon and restaurant. There does not appear to have been any door leading from the piazza into the long, frame building. In front of this frame building there were steps leading up to a door, which the evidence shows to have been closed during the time laid in the indictment. Access to this building was gained by steps and a door in what may be called the rear of the building. Access to it, also, could be gained by going into the saloon in front thereof, and passing out the rear, and along a pathway to this door. On the south side of the barroom, close to it, but not directly connected therewith, was another frame building. Access to this building was gained by a door opposite the end of, but not connected with, the piazza, and also by another door on the southerly side of the building. All these buildings stood in a row directly opposite the ferry landing of the ferry from the city of New York. There was no fence or obstruction between the rear of the barroom and the rear of the other buildings. The evidence is conclusive that in the northerly of these buildings, it being the long, frame building, gambling, betting, bookmaking, and wagering on horse races, during the time mentioned in the indictment, were carried on. The evidence is just as conclusive that in the southerly building, during the time laid in the indictment, poker, faro, and roulette games were being played for money, and other gambling games were there engaged in. There is evidence showing that the usual way of getting into the building to the north was by going into the front of the saloon kept by the defendant, passing out of the rear thereof, and entering the building by the rear door thereof. Gambling games were carried on, also, in this building, at which money was won and lost. The evidence is that large crowds of men were often seen in and about this place, going in and coming out of the saloon of the defendant, and out of these places. The mother of the defendant testified that the defendant conducted the business of the saloon and restaurant, which was licensed in his name, as an inn and tavern, and which was known as the "Hoffman House," with which the frame building on the north is connected. Reference is made to so much of the evidence to show that the question who it was that kept and maintained this disorderly place was one which must be taken by the jury to determine.

At the close of the case defendant requested that the trial court instruct the jury to acquit. Upon the refusal of the court to so instruct, the defendant prayed an exception, which was allowed and sealed, and error is assigned upon such refusal. This exception and assignment of error has no place in the criminal practice in this state. Error cannot be assigned, on a trial of an indictment, upon the refusal of the court to direct an acquittal. Besides, the evidence was amply sufficient, at this point, to go to the jury, to pass upon the question whether the defendant had control of either of the buildings in which betting on horse races and other forms of gambling had been carried on. The defendant was called as a witness in his own behalf. He was the only witness called for the defense. He denied that he had anything to do with the buildings north or south of his saloon or tavern and restaurant. He testified that his mother owned the building to the north, and that it was and had been under her control. He admitted that he had frequently seen and had knowledge of crowds of people gathered about the building. His mother was recalled by the state, and in rebuttal testified that she owned the building to the north, but exercised no control whatever over that or the saloon and restaurant, and that she had never given any one permission to occupy, or had rented to any one, the building to the north for any purpose, and that she had never received anything for its use, and had nothing to do with it, and that her son, the defendant, took charge and control of the building for her. Her evidence was not denied by the defendant. The evi dence fully sustains the conviction unless it be that the case in some respects in point of law was improperly submitted...