State v. Lauries., 54665.
| Decision Date | 07 March 1949 |
| Docket Number | No. 54665.,54665. |
| Citation | 64 A.2d 481 |
| Parties | STATE v. DES LAURIES. |
| Court | New Jersey County Court |
OPINION TEXT STARTS HERE
Appeal from Magistrate's Court, Union County.
Charles Des Lauries was convicted of being a disorderly person, and he appeals.
Complaint dismissed and conviction reversed.
Horace K. Roberson, of Jersey City (William P. Gannon, Esq., Asst. to Prosecutor, of Jersey City, of counsel), for the State.
Joseph P. Hanrahan, of Hoboken, for defendant.
This is an appeal from a conviction in the Magistrate's Court of Union City for violation of R.S. 2:202-16, N.J.S.A. Trial de novo here was deferred pending the determination of a preliminary objection to complaint made on the ground that it alleges no offense under the cited statute.
The charge in the court below upon which the appellant was tried is as follows: ‘On the 26th day of October, 1948, at 1:45 A.M. or thereabouts, at 33rd Street and Palisade Avenue, in the rear of a tavern, in the City of Union City aforesaid, defendant did act disorderly; he could not give a good reason for being in the rear of a tavern at 33rd Street and Palisade Avenue in the City of Union City; all in violation of R.S. 2:202-16 (N.J.S.A.)’
Obviously the charge is fatally deficient. A holding otherwise would involve the evil that is apprehended by our former Supreme Court in Breisia v. Hudson Common Pleas, 169 A. 335, 11 N.J.Misc. 937, at page 938. An indispensable element of offense aimed at in the complaint that constitutes the present charge is the presence of the accused in this State for an unlawful purpose. State v. Hall, 52 A.2d 845, 25 N.J.Misc. 381; McNeilly v. State, 195 A. 725, 119 N.J.L. 237. That is nowhere alleged.
The effect of Rule 2:11 in establishing trial de novo in the County Court as the ‘only method of reviewing a judgment or order’ like the present one is to include in such appellate proceedings all those technical and procedural matters which formerly could be dealt with in certiorari only. This simplification is further manifested by the abolition of certiorari altogether. Const. of N.J. Art. VI, Sec. V., Par. 4, N.J.S.A.; Rule 3:81-1. The complaint is dismissed and the conviction thereon in the Union City Magistrate's Court is reversed and set aside.
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