State v. Koettgen

• Decision Date: 15 November 1915
• Citation: 95 A. 747
• Parties: STATE v. KOETTGEN.
• Court: New Jersey Supreme Court

95 A. 747

STATE

v. KOETTGEN.

Supreme Court of New Jersey.

Nov. 15, 1915.

Error to Court of Quarter Sessions, Passaic County.

Frederick Koettgen was convicted of keeping a disorderly house, and he brings error. Affirmed.

Argued June term, 1915, before GUMMERE, C. J., and SWAYZE and BERGEN, JJ.

Ward & McGinnis, of Paterson, for plaintiff in error. Michael Dunn, of Paterson, for the State.

SWAYZE, J. The plaintiff in error was convicted of keeping a disorderly house. The specific charge was the maintenance of a dance hall, where drunkenness prevailed, foul and vulgar language was used, where prostitutes gathered, and outside of which and nearby fights were frequent.

Most of the questions argued relate to the admission of evidence. Some of the assignments of error are supported by exceptions, and, although many are not, the questions or most of them are legally before us. We need say but a word of the complaint that witnesses were permitted to testify to the age of persons frequenting the place, who knew about it only as they judged from appearances. To reject such evidence would, as Prof. Wigmore says, be pedantically overcautious. Wigmore on Evidence, § 222. The value of such testimony varies with circumstances, but of that the jury must judge.

That the acts and sayings of persons within the place complained of are admissible is settled in this state. Bindernagle v. State, CO N. J. Law, 307, 312, 37 Atl. 619, approved on this point in the Court of Errors and Appeals, 61 N. J. Law, 259, 38 Atl. 973, 39 Atl. 360, 41 Atl. 109, and subsequently applied to evidence of conversations between men and women at a hotel in the absence of the proprietor. State v. Kelly, 76 N. J. Law, 576, 578, 70 Atl. 342. The same authority justifies the admission of evidence that girls of bad reputation for virtue were frequenters of the place.

The principle upon which evidence of the conduct and conversation of frequenters of the place is permitted is that it tends to show the character of the people, and hence of the place where they gather. For this purpose proof of the use of foul and profane language may sometimes be as important as lewd conduct. The language, however, must of itself be disorderly, or must be used in connection with acts which together with the language exhibit disorderly conduct. State v. Sweet, 81 N. J. Law, 250, 79 Atl. 1054; State v. Littman, 86 N. J. Law, 453, 457, 92 Atl. 580. Acts and language of that kind, even in the absence of the proprietor, tend to show the actual character of those who frequent the place, and hence of the place itself. Thieves and prostitutes do not gather in a church. Proof of general reputation of those who frequent the place is also admissible, because a house may be disorderly in the sense of a public nuisance if it is the gathering place of persons of ill repute. Wigmore on Evidence, §§ 78, 204. There is, however, a necessary limitation upon the use of evidence of specific acts and language growing out of the necessity of proving knowledge on the part of the defendant. Since he cannot be charged with guilt unless he knows or may be assumed to know the bad character of those who frequent his place, it has been held that bad character cannot be proved by the fact that crimes were committed elsewhere, even though there have been convictions. State v. Baans, 77 N. J. Law, 123, 71 Atl. 111. In such cases proof of general reputation is admissible, but general reputation cannot be proved by evidence of specific acts of immorality. The reason is that it is not ordinarily probable that the defendant would know of such specific acts, and new issues would be introduced into the case if he had to be ready to defend all his guests against charges of misconduct wherever committed. When, however the misconduct takes place in or near his place, the situation is...