Bor. Of Hasbrouck Heights v. O'brien. Bor. Of Hasbrouck Heights
| Decision Date | 30 June 1948 |
| Citation | 60 A.2d 260 |
| Parties | BOROUGH OF HASBROUCK HEIGHTS v. O'BRIEN. BOROUGH OF HASBROUCK HEIGHTS v. MEILER. |
| Court | New Jersey Special Statutory Court |
OPINION TEXT STARTS HERE
George O'Brien and Fred Meiler were convicted of violating an ordinance of the Borough of Hasbrouck Heights relating to gaming, and they filed a petition for review of the proceedings by a judge of the court of common pleas.
Defendants discharged.
Ralph W. Chandless, of Hackensack, for Borough of Hasbrouck Heights, complainant.
Albert V. D'Amato, of East Rutherford, for defendant, George O'Brien.
Raymond H. Flanagan, of East Rutherford, for defendant, Fred Meiler.
DEL MAR, Presiding Judge.
All parties have agreed that the two above-entitled cases should be argued and decided together, the facts and law in both cases being the same.
The two defendants having each been convicted of violating an ordinance of the Borough of Hasbrouck Heights in a summary proceeding and sentenced to 90 days in the County Jail, petitioned me for a review of the proceedings.
These are not appeals under R.S. 40:87-42, N.J.S.A., but are proceedings authorized by R.S. 2:215-7, N.J.S.A., which provides for a review by the judge of the court of common pleas and not by the court itself. Therefore, the papers should not be entitled in the Bergen County Court of Common Pleas. In passing, it should be noted that the Recorder in his Record of Conviction sets forth the titles of the cases as State of New Jersey, Sergeant Albert Gernert, Prosecutor, against the respective defendants. This is also erroneous inasmuch as the charge is a violation of a borough ordinance and the State of New Jersey is not a party to either action.
The defendants have set forth many reasons why, in their opinions, their convictions should be set aside, some having no merit whatsoever and some presenting debatable questions of law. I do not deem it necessary, however, to consider any of them, except those referred to hereafter.
The Recorder instead of following the time-honored procedure of setting forth the names of the witnesses with the gist of their testimony, returned that the testimony of the witnesses was ‘taken stenographically by Edward Salbin, who was first duly sworn; the transcript of the testimony and proceedings is herewith returned.’ My attention has not been called to any statute authorizing the taking of the proceedings stenographically nor the substitution of a transcript of the testimony and proceedings in lieu of including a statement of the substance of the evidence as a part of the conviction and, in the absence of any such authority, the transcript cannot be considered by me in arriving at a decision. The result is that there is no evidence legally returned to this court and the conviction must, therefore, be set aside. See Esping v. Elizabeth Society for Prevention of Cruelty to Children, 79 N.J.L. 357, 75 A. 547; Elizabeth v. Central R. Co., 66 N.J.L. 568, 49 A. 682; Rothman v. State, 102 N.J.L. 43, 130 A. 888; State v. De Maio, 69 N.J.L. 590, 55 A. 644, aff. 70 N.J.L. 220, 58 A. 173.
At the trial before the Recorder, as indicated by the so-called transcript of proceedings, defendants' counsel attempted to enter a special appearance and to show, by an examination of the witnesses produced on behalf of the borough, that the warrant for defendants' arrest was issued before the complaint had been sworn to. This transcript was not made by virtue of any order or rule of this court and, since the transcript cannot be used as a substitute for a proper record of conviction, I think it is also improper that it should be used for the purpose of attacking the validity of the conviction. I know of no authority for such practice and none has been called to my attention.
There is a still stronger reason why the proceeding should be set aside. The complaint was made by a Sergeant of Police of the Borough of Hasbrouck Heights and the jurat sworn to before some one whose name I cannot read, but who signs it as Borough Recorder; there is a seal annexed which is also unreadable; no court is mentioned; and it is not said that any ordinance of the Borough of Hasbrouck Heights has been violated. If the part of the complaint which alleges a violation of the statutes in such case made and provided be treated as surplusage and assuming that it was intended to charge a violation of Section 17 of Ordinance No. 418 of the Borough of Hasbrouck Heights, even then a reference to such section of such ordinance clearly shows that the complaint does not set forth any violation thereof. The complaint alleges that the defendants did each violate: ‘Ordinance No. 418, Section 17, in that the defendant did and within the jurisdiction of this court, willfully and unlawfully did make and take what is commonly known as a book, upon the running of horses, mares, and geldings, contrary to the form of the statutes in such case made and provided, and against the peace of the state.’
Section 17 of Ordinance 418 of the Borough of Hasbrouck Heights reads as follows: ‘No person shall set up, keep or maintain in any house or premises a faro table, faro bank, roulette or other device or game of chance hazard or address for the purpose of gambling for money or other valuable thing, and no person shall deal, play or engage in faro roulette, or other device or game of chance or address, either as banker player, dealer or otherwise for the purpose of gambling.’
‘Bookmaking’ was defined by the Court of Errors and Appeals, in the case of State v. Morano, 134 N.J.L. 295, at page 299, 47 A.2d 419, 422, as follows: ‘The making or taking and recording or registering of bets or wagers on races and kindred contests.’
The ordinance in question says nothing about bookmaking or betting on horses in so many words. It first prohibits ‘a faro table, faro bank, roulette or other device.’ The purpose of this part of the ordinance was evidently to forbid the use of certain apparatus used for gambling. Under the familiar rule of construction noscitur a sociis the words ‘or...
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