Shuster v. State

• Decision Date: 07 November 1898
• Citation: 41 A. 701,62 N.J.L. 521
• Parties: SHUSTER v. STATE.
• Court: New Jersey Supreme Court

41 A. 701

62 N.J.L. 521

SHUSTER

v. STATE.

Supreme Court of New Jersey.

Nov. 7, 1898.

(Syllabus by the Court.)

Error to court of quarter sessions, Gloucester county; Jessup, Judge.

Frederick J. Shuster was convicted of illegally selling liquors, and brings error. Affirmed.

Argued June term, 1898, before DIXON, LUDLOW, and COLLINS, JJ.

Robert S. Clymer, for plaintiff in error.

Lewis Starr, Prosecutor of the Pleas, for the State.

COLLINS, J. Reversal is sought of a judgment of conviction upon the following indictment: "Gloucester County, to wit: The grand inquest of state of New Jersey and for the body of the county of Gloucester, upon their respective oath and affirmation, those affirming having first alleged themselves conscientiously scrupulous of taking an oath, present, that Frederick A. Shuster, junior, late of the city of Woodbury, in the Bald county of Gloucester, on the 1st day of November, in the year of our Lord one thousand eight hundred and ninety-five, and at divers other days and times between that day and the day of taking this inquisition with force and arms, at, in, around, about and from a certain wagon or wagons, or other perambulatory conveyance or conveyances, in, along, and upon certain of the public roads, and highways and divers other public and private places, in the county aforesaid, and within the jurisdiction of this court, unlawfully and habitually did sell and expose for sale, and cause and knowingly permit to be sold and exposed for sale, to Henry Smith, Benjamin Murray, Alexander Bonsack, William Smith, and other persons whose names are to this grand inquest as yet unknown, certain spirituous, vinous, malt, brewed, and intoxicating liquors, without a license for that purpose first had aud obtained, according to the statute in such case made and provided, and that said habitual sales in the manner aforesaid of the said spirituous, vinous, malt, brewed, and intoxicating liquors was contrary to law, to the great damage and common nuisance of all the citizens of the state of New Jersey there inhabiting, being, residing, and passing, and contrary to the form of the statute in such case made and provided, and against the peace of this state, the government and dignity of the same."

This indictment rests, not upon the act of 1869, prohibiting sales of liquor from a wagon or other ambulatory conveyance (2 Gen. St. p. 1795), for that act is unconstitutional (Mack v. State, 60 N. J. Law, 28, 36 Atl. 1088), but upon the "Werts Act" of 1889 (2 Gen. St. p. 1810). By that statute the unlicensed sale of any of the liquors named in its title is made penal, and the offense is designated as "keeping a disorderly house." Inapt as the designation may seem, it includes sales from a wagon on the highway, and the offense may arise from a single sale. Parker v. State (N. J. Sup.) 39 Atl. 651. In other words, the common-law offense of keeping a disorderly house is enlarged by this act but its consequences remain the same. For punishment, therefore, the court is relegated, as before the change, to the provisions of the law as to nuisances and other offenses indictable at common law. Crimes Act 1 Gen. St. p. 1083, § 192. By the act of 1893 (1 Gen. St. p. 1101), where the offense of keeping a disorderly house consists wholly in the unlawful sale of liquor, the indictment is required to be in form for the sale of intoxicating liquors contrary to...