State v. Catalano, A--128

CourtNew Jersey Superior Court – Appellate Division
Citation104 A.2d 705,30 N.J.Super. 343
Docket NumberNo. A--128,A--128
PartiesSTATE v. CATALANO. . Appellate Division
Decision Date29 April 1954

Arthur Minuskin, Paterson, argued the cause for defendant-appellant.

J. Bernard Saltzman, Passaic, argued the cause for the State (Donald G. Collester, Clifton, attorney).

Before Judges EASTWOOD, JAYNE and CLAPP.

The opinion of the court was delivered by


Defendant was convicted in a municipal court and, on appeal, in a County Court, of having violated the offense stated in the first paragraph of N.J.S. 2A:170--1, N.J.S.A. The County Court sentenced him to six months in the county jail, and fined him $50.

To make out the offense the State must--the intent of the first paragraph is somewhat revealed by the second sentence thereof--establish two matters: first, that the person apprehended "cannot give a good account of himself" or (we are not concerned with this here) that he "is engaged in an illegal occupation"; and second, that he "is in this State for an unlawful purpose'.' McNeilly v. State, 119 N.J.L. 237, 195 A. 725, 726, (Sup.Ct.1937).

Defendant lived in Paterson, New Jersey, near the home of Mr. and Mrs. John Kennedy. On the State's case, which will be set down first, evidence was adduced showing that defendant had gone to New York City, returning to Paterson 2:30 in the morning. The next two hours he was--it could be taken from the evidence--wandering about the streets of Paterson, and unable later to give an account of what he had been doing during that time. At about 4:45 a.m., Mrs. Kennedy called to Mr. Kennedy, and the latter, getting out of bed, saw defendant staring into a bedroom window of their home. Mr. Kennedy notified the police who caught defendant a few minutes later. Indeed, he had been questioned by the police two times before in that year (so it is said) 'on the same general charge.'

On the appeal the State's claim was that defendant's unlawful purpose that morning was to have unlawful sexual intercourse; and in support of that claim the State relied on statements made by defendant to the police when they questioned him. The most significant statement was that made by him to the police the morning after the occurrence, namely, that the early morning 'was the only time he had to get a woman.' It must be borne in mind that he was being examined by the police as to his activities on the morning in question. In that setting his admission, that the early morning was the only time he had to get a woman, casts a fair implication that this was what he was about on that morning. In other words--to tie in the language of the statute--this was a 'purpose' of his, not a mere reverie, but an object he had set before himself as one to be attained. It can reasonably be implied, too, that 'to get a woman' means to have intercourse, which here, apparently, would be only of an unlawful character. These implications stand up under scrutiny, despite the fact that the proofs as to his actions are not dispositive of the matter. In dealing with a man's purposes the statute concerns itself with his state of mind, and no action is needed in order to make this out.

The night before, the police questioning defendant, had elicited from him with respect to his purpose, merely this: 'you can find the female sex early in the morning,' or words to that effect. This latter statement may be said to be indicative only of an intention to 'peep' at women, not to have intercourse.

Defendant on his case sought to give a good account of himself and to disclaim any unlawful purpose. He said he arrived in Paterson from New York at about 4 o'clock in the morning, going to his home only to find he had lost his key. In that predicament at that hour he decided to spend the night at a friend's home who lived nearby, and in fact was on his way when the police stopped him. He denied he had looked into the Kennedys' window or that he had said to the police he was looking for a woman.

The State had the burden of establishing beyond a reasonable doubt that defendant was guilty of the disorderly conduct with which he was charged. McNeilly v. State, 119 N.J.L. 237, 242, 195 A. 725 (1937), supra; 66 C.J., Vagrancy, § 22, p. 411; 27 C.J.S., Disorderly Conduct, § 7, p. 294; cf. State v. Labato, 7 N.J. 137, 151, 80 A.2d 617 (1951).

We see no reason to disturb the County Court's finding as to the first element of the offense above stated, namely, that defendant here could not give a good account of himself. Under the terms of the statute, the proof of this element of the offense raises up a rebuttable presumption of the second element, namely, that defendant was "in this State for an unlawful purpose'.' Unlawful sexual intercourse--as stated, the State on the appeal charges that that was his purpose that night--is a crime. See, among other statutes, N.J.S. 2A:110--1 and 2A:88--1, N.J.S.A. And we are therefore not called upon to determine whether the statutory word 'unlawful' may be said to refer also to disorderly conduct, as was suggested on the argument. See Hayes v. Stevenson, 3 L.T.Rep.N.S. 296, 9 W.R. 53 (1860); In re Smith, 54 Kan. 702, 39 P. 707 (Sup.Ct.1895); City of Portland v. Goodwin, 187 Or. 409, 210 P.2d 577 (Sup.Ct.1949).

Where a presumption is raised as to a fact, and to meet it sufficient evidence is adduced so that (apart from the presumption) reasonable men might honestly differ as to whether or not that is the...

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8 cases
  • United States v. Margeson
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 16 d5 Setembro d5 1966 accordance with the standards prescribed by our law." McNeilly v. State, supra, at 242, 195 A. at 728. In State v. Catalano, 30 N.J.Super. 343, 104 A.2d 705 (1954), the Superior Court, Appellate Division, which is presently the New Jersey intermediate appellate tribunal, was faced with t......
  • State v. Sullivan
    • United States
    • New Jersey Supreme Court
    • 1 d1 Abril d1 1957
    ...corruptly while the trial judge either found that he did not or failed to make any finding whatever. In State v. Catalano, 30 N.J.Super. 343, 104 A.2d 705 (App.Div.1954), a conviction for a disorderly persons offense was reversed where the findings failed to include an essential element of ......
  • Graybar Elec. Co. v. Manufacturers Cas. Co.
    • United States
    • New Jersey Supreme Court
    • 14 d1 Maio d1 1956
    ...R.R. 1:5--4; City of Asbury Park v. Department of Civil Service, 17 N.J. 419, 423, 111 A.2d 625 (1955). Cf. State v. Catalano, 30 N.J.Super. 343, 348, 104 A.2d 705 (App.Div.1954). Our courts have held that the date of acceptance within the meaning of the pertinent provision of the statute a......
  • State v. Salerno
    • United States
    • New Jersey Supreme Court
    • 9 d1 Junho d1 1958
    ...129 N.J.L. 416, 30 A.2d 54 (Sup.Ct.1943), affirmed State v. Carroll, 130 N.J.L. 559, 33 A.2d 907 (E. & A.1943); State v. Catalano, 30 N.J.Super. 343, 104 A.2d 705 (App.Div.1954). II. The statute is an offshoot of the traditional vagrancy acts of which N.J.S. 2A:170--4, N.J.S.A., dealing wit......
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