Parker v. State

• Citation: 61 N.J.L. 308,39 A. 651
• Parties: PARKER v. STATE.
• Decision Date: 21 February 1898
• Court: New Jersey Supreme Court

39 A. 651

61 N.J.L. 308

PARKER

v. STATE.

Supreme Court of New Jersey.

Feb. 21, 1898.

(Syllabus by the Court.)

Error to court of quarter sessions, Monmouth county; Conover, Judge.

John K. Parker was convicted of keeping a house in which he habitually sold intoxicating liquors without a license, and he brings error. Affirmed.

Argued November term, 1897, before MAGIE., C. J., and GARRISON and LIPPINCOTT, JJ.

Aaron E. Johnston and R. T. Stout, for plaintiff in error.

Wilber A. Heisley, for the State.

MAGIE, C. J. The writ of error in this cause was returnable in December, 1895. At the June term, 1896, the case and briefs of counsel were sent to the court. On examination, the return was found to be so defective that the court declined to consider the case, and so notified counsel. No further step having been taken, the court, at November term, 1897, was about to dismiss the writ, when counsel on both sides agreed to an amendment of the return. The case was then argued at that term by briefs submitted to the judges who sat in the court when it was first presented. Out of the 23 assignments of error, those only will be dealt with which are deemed to present any debatable question.

The first point raised by the brief of counsel for plaintiff in error relates to the sufficiency of the indictment. It contains three counts, and the record shows a general verdict of guilty as charged. If any of the counts are free from objection, it will be sufficient to support the judgment. Hunter v. State, 40 N. J. Law, 495. It is unnecessary to express any opinion in regard to the second or third counts, because I have concluded that the first count is entirely unobjectionable. It charges, in substance, that plaintiff in error, on a certain day, and on divers other days between that day and the day the inquisition was taken, in a certain house kept and maintained by him in the township of Neptune, in the county of Monmouth, unlawfully and habitually sold by retail, and by less measure than a quart, certain spirituous, vinous, malt, and brewed liquors which are specified, to certain persons named, and to divers other persons unknown to the grand jury, without having a license for that purpose. A brief review of the law on this subject seems to establish the sufficiency of such a charge. It has been settled in this state that a house in which unlawful sales of liquor are habitually made is a nuisance, and he who maintains it is guilty of keeping a disorderly house. Meyer v. State, 42 N. J. Law, 145. By the "Act to regulate the sale of spirituous, vinous, malt and brewed liquors and to repeal an act entitled 'An act to regulate the sale of intoxicating and brewed liquors, passed March 7, 1888,'" which act is commonly known as the "Werts Law" (2 Gen. St. p. 1810), the person who sells any of the liquors named in its title without license obtained for that purpose is guilty of the offense of keeping a disorderly house. When that act was adopted, sales of such of said liquors as are called ardent spirits were misdemeanors, punishable by fine, under the sixtieth section of the crimes act (1 Gen. St. p. 1060). By the provisions of the "Act to regulate the sale of ale, strong beer, lager, porter, wine and other malt liquors in the state of New Jersey," approved April 4. 1872, the sale of such liquors without license was prohibited under penalties, and, in addition, any person making such sale without license was expressly declared to be guilty of keeping a disorderly house. 2 Gen. St. p. 1797. This lastmentioned act was construed in this court to support a conviction on an indictment for keeping a disorderly house upon proof of a single sale in violation of its provisions. State v. Pay, 44 N. J. Law, 474. A like construction must be given to the Werts law. That law, by its repeal of all inconsistent and repugnant acts, and by the construction thus given to it, must be considered to have superseded the acts previously existing that provided for the punishment of the unlicensed sale of all the liquors named therein, for the repeal was unrestricted, and it would be absurd to suppose that the legislature intended that every person selling ardent spirits without license should be liable either to a fine, under the sixtieth section of the crimes act, or to the severer punishment that could be imposed upon the keeper of a disorderly house, according to the mode in which the grand jury presented the offense. It results that the Werts law made any sale of the liquors to which it applied, without an appropriate license, an offense, and called that offense "keeping a disorderly house." This seems an inappropriate name to characterize a crime committed by a single act, because the common-law offense of keeping a disorderly house could only habitually be committed by a series of acts done. But the legislative power was plainly sufficient to determine what should constitute a crime, and how such a crime should be named or characterized, and by what evidence it should be proved. This result is not, in my judgment, in conflict with the decision in Rogers v. State, 58 N. J. Law, 220, 33 Atl. 283; for the Werts law, while making a single sale of intoxicating liquor without appropriate license constitute the offense of keeping a disorderly house, did not expressly nor impliedly take away or diminish the liability to indictment of one who maintained a place in which he habitually sold such liquors in violation of law; and the late chief justice, in his opinion, was dealing with a case of that sort, and the nature of the charge that was required in an indictment for that offense under the act next to be considered. That act was enacted as a supplement to the crimes act, and was approved March 10, 1893. 1 Gen. St. p. 1101. It provides that any indictment for the offense of maintaining a common-law nuisance or keeping, a disorderly house under section 192 of the crimes act, where the offense consists wholly in the unlawful sale of spirituous, vinous, malt,...