Latimer v. Wilson

• Decision Date: 18 October 1926
• Docket Number: No. 96.,96.
• Citation: 134 A. 750
• Parties: LATIMER v. WILSON et al.
• Court: New Jersey Supreme Court

134 A. 750

LATIMER

v. WILSON et al.

No. 96.

Court of Errors and Appeals of New Jersey.

Oct. 18, 1926.

(Syllabus by the Court.)

Appeal from Supreme Court.

William F. Latimer was convicted of operating a motor vehicle while drunk (132 A. 325), and he appeals. Affirmed.

Wolber & Gilhooly, of Newark, for appellant.

David F. Barkman, of Morristown, for respondents.

KAYS, J. The appellant. William F. Latimer, was convicted of violating section 14, subdivision 3, of chapter 211, P. L. 1924, entitled:

"An act to amend an act entitled 'An act defining motor vehicles and providing for the registration of the same and the licensing of the drivers thereof; fixing rules regulating the use and speed of motor vehicles; fixing the amount of license and registration fees; prescribing and regulating process and the service thereof and proceedings for the violation of the provisions of the act and penalties for. said violation,' approved April eighth, one thousand nine hundred and twenty-one, as amended by an act approved March nineteenth, one thousand nine hundred and twenty-three, and as further amended by an act approved March nineteenth, one thousand nine hundred and twenty-three."

A complaint was made under said section of said act on June 7, 1925, and said William F. Latimer was arrested on the charge of operating a motor vehicle while under the influence of intoxicating liquor. He was thereupon taken before a justice of the peace of Morris county by virtue of a warrant issued by said justice. He was tried on that charge, and found guilty by the justice, and a sentence of 30 days in the Morris county jail was imposed upon him by said justice, together with payment of costs amounting to $7. Latimer thereupon appealed to the court of common pleas of Morris county for a trial de novo. The judge of the court of common pleas of Morris county found Latimer guilty, and imposed a sentence of 30 days in the Morris county jail upon him, together with costs of the proceedings.

The appellant thereupon took out a writ of certiorari to the Supreme Court, claiming that the statute under which the proceedings were had was unconstitutional. The Supreme Court refused to consider this question upon the ground that it was not raised in the court of common pleas, holding that only points raised in the court of common pleas could be considered in a court of review, following the doctrine laid down in Ryer v. Turkel, 75 N. J. Law, 677, 70 A. 68. The only contention before this court is that the said statute under which said proceedings were had is unconstitutional, and that the Supreme Court should have considered this question.

We are of the opinion that the consideration of the constitutional question was not precluded from the consideration of the Supreme Court, and is not precluded of necessity by this court. The rule as laid down by this court in the case of Donohue v. Campbell, 98 N. J. Law, 755, 121 A. 700, is stated by Chancellor Walker at page 758 (121 A. 701), wherein he says:

"This court in reviewing the judgment of the Supreme Court will not, as a general rule, consider any question not set up or argued in the court below. See Franklin v. Millville, 98 N. J. Law, 262 . But it is the constant practice of appellate courts to notice and decide questions of jurisdiction and public policy without those questions having been raised below. See McMichael v. Horay, 90 N. J. Law, 142 ."

And in the case of Franklin v. Millville et al., reported in 98 N. J. Law, 262, 119 A. 29, this court said:

"The settled rule is that this court need not, and except for special reasons will not, pass on questions not raised in the court below."

This same rule is also laid down in State v. Johnson, 91 N. J. Law, 611, 101 A. 593, New York Central Railroad Co. v. Petrozzo, 92 N. J. Law, 428, 105 A. 231; Allen v. Paterson, 99 N. J. Law, 489, 123 A. 884, and Penrose v. Absecon Land Co., 94 N. J. Eq. 439, 120 A. 207.

We are of the opinion that the constitutional question raised in this case is of sufficient importance to be considered by this court, even though such question was not raised at the trial. The only constitutional questions urged by the appellant before this court are as follows:

First That the said act and section under which the appellant was convicted is invalid, because it deprives a defendant of a right of trial by jury. Subdivision 3 of section 14, chapter 211, P. L. 1924, is quite similar to the act concerning disorderly persons. P. L. 1913, page 103. The act concerning disorderly persons, however, relative to operating a motor vehicle under the influence of intoxicating liquors, provides that any person or persons who shall operate an automobile or motor vehicle, or any other vehicle over any public street or highway, while under the influence of intoxicating liquors shall be adjudged to be a disorderly person, etc. Chapter 211, P. L. 1924, relative to motor vehicles, under section 14, subdivision 3, provides that no person shall operate a motor vehicle while under the influence of intoxicating liquor, etc. or permit any person who may be under the influence of intoxicating liquor, etc., to operate any motor vehicle owned by him or in his custody or control. Under both acts the punishment is the same, that is, not less than 30 days, nor more than 6 months, in the county jail. This court passed upon these provisions under the Disorderly Act of 1913 in the case of State v. Rodgers, 91 N. J. Law, 212. 102 A. 433. Mr. Justice Trenchard in writing the opinion in that case says:

"We think it quite clear that the thing prohibited in the supplement of 1913, namely, the driving of an automobile or other vehicle upon a public street, while under the influence of intoxicating liquor, is not a public or common nuisance indictable at common law.

"The essential elements of the statutory offense are: (1) Driving an automobile or vehicle; (2) upon a public street; and (3) while under the influence of intoxicating liquors.

"The essential elements of a public or common nuisance are quite different. 'A public or common nuisance is any act or neglect the product of which works an annoyance or injury to the entire community; or the product itself is termed a nuisance.' 1 Bish. Crim. L. § 1072. Inconvenience or annoyance to the public is an essential element without which there is no public or common nuisance. State v. Godwinsville, etc., Co., 49 N. J. Law, 260 [10 A. 666, 60 Am. Rep. 611]. And an indictment for a public nuisance must set out the manner in which this inconvenience or annoyance arises. Morris and Essex Railroad Co. v. State, 36 N. J. Law, 553, 555.

"It will be seen, therefore, that the statutory offense of driving an automobile upon the public street while under the influence of intoxicating liquor differs from a public nuisance in this: The former offense is complete when the thing prohibited by the statute has been done, whether with or without inconvenience or annoyance to the public; whilst the latter offense is not committed unless and until there is an inconvenience or annoyance to the public.

"It will be noticed that it is not essential to the existence of the statutory offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. The expression 'under the influence of intoxicating liquor' covers not only all the well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess. So one driving an automobile upon a public street while under the influence of intoxicating liquor offends against the Disorderly Persons' Act even though he drives so slowly and so skillfully and carefully that the public is not annoyed or endangered; but such a driver is...