Mullen v. State
| Decision Date | 28 February 1902 |
| Citation | 51 A. 461,67 N.J.L. 451 |
| Parties | MULLEN v. STATE. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Alexander Mullen was convicted of being a disorderly person, and brings certiorari. Conviction set aside.
Argued November term, 1901, before VAN SYCKEL, FORT, and GARRETSON, JJ.
John F. Hawkins, for the writ.
Rulif V. Lawrence, opposed.
The first question in this case is one of practice. Does section 7 of the certiorari act, requiring a recognizance before the writ is allowed, apply to cases under the disorderly act? Such convictions are undoubtedly before a justice of the peace or other magistrate, and not before the court for the trial of small causes. Laws 1898, p. 950, § 45. The proviso to section 7 of the certiorari act seems to make the legislative intent perfectly plain. That section was intended to apply to all cases except orders and judgments in actions for debts or demands between party and party made cognizable before any justice of the peace by the act entitled "An act constituting courts for the trial of small causes." Gen. St. p. 368, § 7. This court has held a recognizance necessary in cases arising under the disorderly act Sutton v. Overseers, 32 N. J. Law, 295. A recognizance is required whenever the matter with which the defendant is charged is a public wrong, prosecutable by or in the name of the state, and not when the wrong is a mere private one. Overseers of Poor of Bethlehem Tp. v. Overseers of Alexandria Tp., 31 N. J. Law, 300; Sutton v. Overseers, supra.
A recognizance was necessary in the case before us. But, while it was not presented with the writ to the supreme court justice avowing it it was by his order and approval filed before the hearing. The statute says that no writ shall be allowed "unless the party prosecuting such certiorari shall before the allowance thereof * * * enter into recognizance with the state of New Jersey * * * with condition," etc. "The provision is directory only. The allowance of a writ of certiorari without the recognizance would not be void. It would only be ground for application to vacate the allocatur under rule 00 of the supreme court or to dismiss it at the next term. Upon the making of such an application by the defendant in certiorari it is within the power of the justice or court to then allow the filing of the recognizance; the defendant is in no way prejudiced. In Overseers ads. Sutton, above cited, the court gave the prosecutor who had failed to enter into...
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...establish the charge. We find that the language used was both loud And offensive. N.J.S. 2A:170--29(1), N.J.S.A.; Mullen v. State, 67 N.J.L. 451, 51 A. 461 (Sup.Ct.1902); State v. D'Aloia, 146 A. 426, 2 N.J.Misc. 1164 We deal, finally, with the charge that defendant, in violation of the New......
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