McNeilly v. State

Decision Date28 December 1937
Docket NumberNo. 247.,247.
Citation195 A. 725,119 N.J.L. 237
PartiesMcNEILLY v. STATE et al.
CourtNew Jersey Supreme Court

Syllabus by the Court.

1. The Legislature, under its police power, may constitutionally provide, as it did in P.L.1936, c. 166, p. 400, N.J.St.Annual 1936, § 59—48, subd. (a), that one who cannot give a good account of himself and who is in the state for an unlawful purpose is a disorderly person subject to penalty as such.

2. The Legislature may constitutionally provide that a given proved fact shall be presumptive of an ultimate fact provided there is some rational connection between the fact proved and the ultimate fact presumed, and provided further the presumption is not so unreasonable as to be a purely arbitrary mandate.

3. Under P.L.1936, c. 166, p. 400, N.J.St. Annual 1936, § 59—48, subd. (a) facts examined and held to support a finding that defendant was in the state for an unlawful purpose and was unable to give a good account of himself.

Appeal from Court of Common Pleas, Hudson County.

James McNeilly was convicted of being a disorderly person, and he brings certiorari. Writ dismissed and conviction affirmed.

Argued October term, 1937, before BODINE, HEHER, and PERSKIE, JJ.

John G. Flanigan, of Jersey City, for prosecutor. James A. Hamill and Charles Hershenstein, both of Jersey City (Edward J. O'Mara, of Jersey City, of counsel), for respondents.

PERSKIE, Justice.

The propriety of prosecutor's conviction as a disorderly person rests basically upon our determination of the assault made upon the constitutionality of our act concerning disorderly persons (Revision of 1898) as lastly amended by chapter 166, P.L. 1936, p. 400, N.J.St.Annual 1936, § 59—48, subd. (a).

As so amended, section 1, subdivision (a) thereof, now provides as follows:

"Any person who shall be apprehended either on foot or in any automobile, vehicle or public conveyance, who cannot give a good account of himself or who is engaged in an illegal occupation, and who is in this State for an unlawful purpose, shall be deemed and adjudged to be a disorderly person.

"In any prosecution under this section the fact that the person apprehended cannot give a good account of himself or is engaged in an illegal occupation shall be prima facie evidence that he is present in this State for an unlawful purpose."

The judgment of conviction discloses that after midnight on June 29, 1937, two detectives of Jersey City, while on duty, observed prosecutor walking on "Central avenue in the vicinity of Griffith street"; "he was looking into windows at the time * * *"; and "seemed wandering aimlessly * * *"; he continued to walk on Central avenue as far as South street; he returned slowly to Griffith street where he "stood on the corner and looked up and down." The detectives had observed prosecutor's actions for "about forty minutes." They stopped prosecutor and questioned him. Prosecutor explained his presence in Jersey City by saying that he was a resident of Hoboken, N. J.; that he was in that particular vicinity because he had been to a dance and had met a girl who lived in the neighborhood, but he neither knew her name nor her address. The detectives observed that prosecutor carried or wore but one glove; it was for his right hand; he had none on the left hand; stones were found in his pocket. When asked to explain, prosecutor said that the glove and stones were used by him as weapons for self-protection in event of an assault upon him. Upon further inquiry, however, prosecutor admitted that he had broken windows with the glove stuffed with stones, and that he had been arrested for "breaking windows."

Prosecutor was then taken to police headquarters for further questioning. It there developed, by prosecutor's own admissions, that he did not live in Hoboken but lived in New York; that he had broken the store window of a Moe Levy store and stole suits and overcoats from the window; that he used the glove and stones to break windows to commit robbery; he, in fact, demonstrated to the men at headquarters how he broke a window with his glove stuffed with stones. He further admitted that he had an unsavory criminal record.

Upon being sworn in his own behalf prosecutor, while denying intent to do wrong at the time, admitted that there was "no special reason" for his being in New Jersey; that he was "always getting into trouble"; and that he had been "sent away" for "breaking windows and stealing." He admitted the truth of the criminal record which showed that he had been arrested in New York for burglary in 1921 and for grand larceny in 1926; that he had been sentenced to six months for attempted burglary in 1927; that he had been sentenced from three to five years in Michigan state prison in 1929 on charge of breaking and entering; that he had been sentenced to four months in the workhouse at Brooklyn in 1931 on the charge of attempted burglary; that he had been sentenced to five years in Bronx, N. Y., in 1932 on the charge of burglary; and that he has been out on parole since 1935.

Obviously, the facts fully support the conviction and we are, therefore, concerned only with the points which are argued in support of the alleged unconstitutionality of the act in question.

First. Prosecutor contends that the act is unconstitutional because its terms and provisions are indefinite, uncertain, and vague, and thus violative of the due process clause of the Fourteenth Amendment of our Federal Constitution. That contention is rested upon the premise that the act sets forth no ascertainable standard of guilt, and, therefore, does not inform a defendant of the nature and cause of the accusation against him. United States v. Brewer, 139 U.S. 278, 288, 11 S.Ct. 538, 35 L.Ed. 190; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232; United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045. It appears to us that these contentions are based upon a misconception of the provisions of the challenged legislation.

It is conceded, if the act provided that the only fact necessary to be proved in order to sustain a conviction as a disorderly person were that the accused "be unable to give a good account of himself," then it would be unconstitutional. This court has so held. Archer v. First Criminal Judicial Dist. Court of Bergen County, 162 A. 914, 10 N.J.Misc. 1159. Under such a supposition the act would be subject to the criticism, made by Mr. Justice Parker who sat alone in...

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15 cases
  • United States v. Margeson
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 16, 1966
    ...prove that the accused is in the state for an unlawful purpose. The case most heavily relied upon by the government is McNeilly v. State, 119 N.J.L. 237, 195 A. 725 (1937), from the former New Jersey Supreme Court which at the time was an intermediate appellate tribunal. The court stated th......
  • State v. Labato, A--89
    • United States
    • United States State Supreme Court (New Jersey)
    • May 14, 1951
    ...v. Rodgers, 91 N.J.L. 212, 102 A. 433 (E. & A.1917); Levine v. State, 110 N.J.L. 467, 166 A. 300 (E. & A.1933); McNeilly v. State, 119 N.J.L. 237, 195 A. 725 (Sup.Ct.1937); State v. Burkitt, 120 N.J.L. 393, 200 A. 1005 (S.Ct.1938); Helvering v. Mitchell, supra; People v. Galpern, 259 N.Y. 2......
  • State v. Zito
    • United States
    • United States State Supreme Court (New Jersey)
    • June 26, 1969 proscribing conduct indicative of a purpose to violate the law (pp. 294--295, 142 A.2d 636). We noted that McNeilly v. State, 119 N.J.L. 237, 195 A. 725 (Sup.Ct.1937), had said the statute would be unconstitutional if a conviction could rest solely upon an inability to give a good accoun......
  • Pratico v. Rhodes, A--80
    • United States
    • United States State Supreme Court (New Jersey)
    • January 31, 1955
    ...have not challenged the establishment of this rule of evidence, nor its applicability to the case at bar; see McNeilly v. State, 119 N.J.L. 237, 241, 195 A. 725 (Sup.Ct.1937); State v. Lisena, 129 N.J.L. 569, 572, 30 A.2d 593 (Sup.Ct. 1943); affirmed 131 N.J.L. 39, 34 A.2d (E. & A. 1943); C......
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