State v. Harrington

• Decision Date: 14 June 1915
• Docket Number: No. 56.,56.
• Citation: 94 A. 623,87 N.J.L. 713
• Parties: STATE v. HARRINGTON.
• Court: New Jersey Supreme Court

94 A. 623

87 N.J.L. 713

STATE

v. HARRINGTON.

No. 56.

Court of Errors and Appeals of New Jersey.

June 14, 1915.

Error to Supreme Court. Cornelius J. Harrington was convicted of running a disorderly house. The conviction was affirmed by the Supreme Court, and he brings error. Affirmed.

The opinion of the Supreme Court, referred to, is as follows:

We think the trial court committed no error in refusing to permit the defendant to introduce in evidence a conversation between himself and one Nemrow, his partner, tending to show that, in the distribution of the work of running the partnership business Harrington was to devote his time to the management of the barroom and the sale of liquor therein. Our reason for so considering is that no arrangement between the partners could relieve Harrington from responsibility for maintaining a disorderly house, if their hotel was run in such a manner as to constitute it such a place with Harrington's knowledge; and the agreement between himself and his partner was not evidential on the question of his knowledge, or lack of it. For the same reason the exclusion of the testimony of Froelich upon matters of the same general character was proper.

We think, further, that the attack upon the charge to the jury is without merit. The interrogation of the court to the jury, after reciting some of the testimony, "In view of these circumstances, how can you say that Harrington had no knowledge of the manner in which this place was being conducted, and of the occurrences that were constantly taking place there?" is not the laying down of a legal principle or a usurpation by the court of the function of the jury. It is a mere indication of the effect which the evidence produced upon the mind of the trial judge. That he did not intend by it to indicate to the jury that they must be controlled by his view of the force of the testimony is shown by what he said immediately after, namely: "That is a question of fact for your determination."

The characterization by the court of the witness Freund as "the clerk who could remember nothing of the statement which he admitted he made to the prosecutor, and could remember none of the incidents which he had described there," was justified by Freund's own statement made upon the witness stand.

The instruction in reference to the effect of flight by a person charged with crime that it "is deemed, when unexplained, to raise some presumption of guilt akin to the presumption deemed to arise upon the fabrication of false evidence, or the suppression of true evidence," is taken verbatim from the opinion of the Court of Errors and Appeals in State v. Jaggers, 71 N. J. Law, 282, 58 Atl. 1014, 108 Am. St. Rep. 746, and must be accepted as the law upon this subject in this state until that court sees fit to modify it.

The instruction that, "if there were isolated instances of violation by the secret conduct of the employés, they would not be habitual, and therefore it could not be a disorderly house, but, if continued and habitual, then it is for you to say whether the defendant permitted it," is so plainly sound as a legal proposition that it needs no discussion to justify it.

The following instruction is also challenged: "The offense of keeping a disorderly house does not necessarily consist in the fact that the keeper himself commits any of these crimes, but that he permits his house to be made a nuisance by habitually permitting these offenses there, whether by himself or others. And it is a question of fact for the jury to determine whether satisfactory evidence has been produced to show that the defendant kept, maintained, or controlled, or, as our Supreme Court has held, had the power to control, the place, or permitted or suffered it to be so kept and maintained, having...