State v. Grossman

• Decision Date: 08 June 1920
• Docket Number: No. 5.,5.
• Citation: 110 A. 711
• Parties: STATE v. GROSSMAN et ux.
• Court: New Jersey Supreme Court

110 A. 711

STATE

v. GROSSMAN et ux.

No. 5.

Supreme Court of New Jersey.

June 8, 1920.

Error to Court of Quarter Sessions, Essex County.

Harris Grossman and wife were convicted of maintaining a disorderly house, and they bring error. Affirmed.

Argued February term, 1920, before GUMMERE, C. J., and MINTURN and BLACK, JJ.

Edward Schoen, of Newark, for plaintiffs in error.

J. Henry Harrison, Prosecutor of the Pleas, and John A. Bernhard, Asst. Prosecutor of the Pleas, both of Newark, for the State.

GUMMERE, C. J. The defendants were indicted for and convicted of the offense of maintaining a disorderly house in the city of Newark. The record shows that the indictment was presented on the 18th day of March, 1919, and that two days later the defendants were arraigned and pleaded not guilty. The trial was then set for the 10th day of April following, and on this day (and before the drawing of the jury) Mr. Schoen appeared as counsel for the defendants and moved an adjournment on the ground that he had been retained in the case only two days before; that the indictment did not specify the locality of the place where the offense charged therein had occurred; and that he had the day before served a notice upon the prosecutor of the pleas calling for this information, and had received no reply. There was no suggestion that the defendants were in fact ignorant of the identity of the building referred to in the indictment. The motion to postpone was refused for the reason that when the defendants were put at the bar to plead they were represented by counsel who was still engaged in the case, and that the fact that Mr. Schoen had been called in as associate counsel so late that he had been unable to familiarize himself with the facts, afforded no ground for a postponement.

The first ground upon which we are asked to reverse this conviction is based upon the judicial action just referred to. It is not denied that ordinarily a motion to postpone is addressed to the discretion of the court, but it is contended that under the circumstances existing in this particular case, and especially in view of the impossibility of counsel being able to properly defend his client with only two days afforded him for preparation, the refusal constituted a gross abuse of that discretion. We cannot concur in this view. To do so would practically be to hold that whenever the defendant in a criminal case saw fit to employ additional counsel a day or two before that set for the trial of the case, an adjournment on his application should follow almost as a matter of course. Under such a system of administering the law the actual trial could be postponed at the will of the defendant himself as frequently as he might desire, provided his financial condition would permit him, whenever the day set for the trial was near at hand, to employ additional counsel to assist in the defense. It is hardly necessary to say that no such doctrine is recognized in the criminal law.

Upon the refusal of the motion to postpone counsel then moved to quash the indictment upon the ground that it was not sufficiently specific in its allegation of the place where the offense laid in it had been committed. This motion was refused, and the refusal is specified as a ground for reversal. It is enough to say with relation to this phase of the case that in State v. Pisaniello, 88 N. J. Law, 262, 96 Atl. 89, it was declared by the Court of Errors and Appeals that a motion to quash was addressed to the discretion of the court, and, consequently, the ruling of the court upon the motion was not reviewable on strict bill of exceptions, and, further, that it was not reviewable under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863), because it was not a matter occurring during the trial of the case, but preceded that trial. The rule there laid down was reiterated by that court in State v. Rosenberg, 92 N. J. Law, 925, 105 Atl. 729, and again in State v. Riggs, 92 N. J. Law, 575, 106 Atl. 467.

After the refusal of the motion to quash the prosecutor of the pleas asked leave to have the...