State v. Jefferson

• Decision Date: 28 November 1941
• Parties: STATE v. JEFFERSON.
• Court: New Jersey Supreme Court

23 A.2d 406

19 N.J.Misc. 678

STATE

v. JEFFERSON.

Court of Special Sessions of New Jersey, Essex County.

Nov. 28, 1941.

Appeal from Family Court of City of Newark.

Jessie Jefferson was charged with being a disorderly person, and from judgment of the Family Court of the City of Newark she appeals and preliminary to trial de novo moved to strike complaint.

Complaint stricken.

Sanford Silverman, of Newark, for defendant-appellant.

Emanuel Millman, of Newark, for the State.

FLANNAGAN, Judge.

This is a trial de novo of an issue based on a complaint made originally in the Family Court of the City of Newark before a magistrate of the City. The trial de novo is by virtue of an appeal from his decision under Chapter 54, Laws 1941, R.S. 2:206-11, N.J.S.A. § 2:206-11. This is not a review of the proceedings before the magistrate, but a trial de novo upon the pleadings, which are thus open to attack in this court.

A motion is now made preliminary to the trial de novo to strike the complaint as failing to charge any offense on its face. The proceedings in the Family Court were brought under the portion of the Disorderly Persons Act, R.S. 2:202-16, N.J.S.A. 2:202-16, which provides, inter alia, that any person engaged in an illegal occupation or who bears a bad reputation and consorts for an unlawful purpose with criminals or persons who bear a bad reputation shall be adjudged a disorderly person.

The complaint alleges that the said Jessie Jefferson then and there being a criminal and or having a bad reputation did consort with criminals and persons having a bad reputation, to wit: Marjorie Morrell (and others, naming them) for an unlawful purpose in violation of R.S.1937, 2:202-16, of an act concerning Disorderly Persons, etc.

The objection made to the complaint is that it is in the "conjunctive-disjunctive form". The use of the "fractional form of expression" in pleadings has been emphatically condemned by our Court of Errors and Appeals. Fisher v. Healy's Special Tours, Inc., 121 N.J.L. 198, 1 A.2d 848. In that case the court says: "But the expression 'and/or,' while much in vogue of recent years in commercial circles and even in certain acts of the legislature, has never been accredited in this State as good pleading or proper to form part of a judgment record, and has been severely criticised by many courts of high standing. [citing many cases]. It seems odd that as early as 1855 an English Court dealt with the matter. Cuthbert v. Cumming, 10 Exch. 807. In this State, our Supreme Court in 1934 was constrained to set aside a conviction under Chapter 280 of P.L.1933, p. 752, an amendment of the Disorderly Persons Act, because of the conjunctive-disjunctive definition of the offence. Montella v. State (not reported), No. 232 January Term, 1934. See, also, Harcher v. Hurley, 116 N. J.L. 18, at pages 20, 21, 181 A. 309. We concur in the disapproval of the expression by the courts of our sister States, and take this opportunity of registering that concurrence for the benefit of the bar." (page 199 of 121 N.J.L., page 848 of 1 A.2d).

In the unreported case in the Supreme Court in which Justices Case, Bodine, and Donges sat, to which reference is made in the above-quoted opinion of Mr. Justice Parker, the following was the language of the court, Mr. Justice Bodine writing the opinion:

"The prosecutors were convicted in a summary proceeding for a violation of Chapter 280 of the Laws of 1933. The statute is an amendment of the Disorderly Persons Act. The legislature unfortunately used the inexact phrase 'and/or' between the various clauses of offences denounced by the act. We cannot say that they meant either the conjunctive 'and' or the disjunctive 'or' to prevail. Since they used both, we can only observe that they meant both. That is, the offence condemned is either doing all the things specified or only some of them. This leads to an uncertainty as to the precise nature of the offence. It...