State v. Lyons

• Decision Date: 20 November 1923
• Docket Number: No. 94.,94.
• Citation: 122 A. 758
• Parties: STATE v. LYONS.
• Court: New Jersey Supreme Court

122 A. 758

STATE

v. LYONS.

No. 94.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1923.

William J. Lyons was convicted of keeping a disorderly house, and he brings error. Affirmed.

In the Supreme Court the following per curiam was filed:

"This case is before us on a writ of error directed to the Essex county court of quarter sessions. The writ brings up for review the conviction of William J. Lyons, for the keeping of a disorderly house at No. 105 South Orange Avenue in the City of Newark. The indictment was found by the December, 1921, grand jury, and included as the keepers of the disorderly house some fifteen others, besides Lyons. All the defendants, except Lyons, pleaded non vult. The pleas of some of the defendants were not offered and accepted until after the commencement of the trial. The specific acts alleged in the indictment were bookmaking, pool selling, gambling, and betting on the event of horse races on October 1, 1921, and on other days to the finding of the indictment. The jury found Lyons guilty. He was sentenced to a term of not less than one year and not more than three years at hard labor in the New Jersey State Prison, and to the payment of a fine of $1,000 and costs.

"The building was a three-story building, located at the corner of South Orange avenue and Richmond street. A saloon occupied practically the entire first floor. On the South Orange front of the second floor were two small rooms with a larger room on the Richmond street side. Changes in the partitions of the rooms on the second floor had been recently made. There were three entrances to the building. The patrons of the place used the entrance to the saloon. Some of the doors were reinforced and some of the windows barred.

On January 6, 1922, at 4:30 p. m. members of the police department and the prosecutor's office, with deputy sheriffs, raided this building and found and arrested 135 persons, including Lyons. Considerable gambling paraphernalia was seized, tables, chips, dice, horse racing slips, etc. An examination of the premises disclosed a buzzer on the first floor, back of the bar, which connected with the upper floor. In the bar, cards bearing the name of the defendant were found. The defendant was searched after his arrest and $4,700 in money found upon his person. There was also discovered back of the bar a bill for the iron work about the premises, made out to William J. Lyons, and a statement for the bill rendered, which was receipted.

"Prior to the raid the place had been visited by detectives who saw Lyons on these occasions in different rooms of the premises. He was observed paying off beta which had been made.

"The defendant offered no testimony, and the case was submitted to the jury without any explanation from him or other witnesses as to his presence in the building and as to the matters which the state claimed connected Lyons with the management of the house. There are 84 assignments of error and specifications of causes for reversal. Most of these are abandoned. The brief of the plaintiff in error deals with comparatively few of the assignments of error and specifications of causes for reversal. These will be taken up in the order they are argued in the brief for the plaintiff in error.

"The first point argued by the plaintiff in error is that the charge was so manifestly unfair in its comment upon the testimony that it was an abuse of the sound discretion of the court and for this reason the judgment should be reversed.

"It is within the province of the court to comment upon the evidence. It is often the duty of the court to do so. State v. Hummer, 72 N. J. Law, 328, 62 Atl. 388. We have examined the charge and are of the opinion that the trial judge's comments upon the testimony were within the latitude accorded him by the decisions of this state.

"The next point argued is that the court erred in admitting in evidence an exhibit offered by the state and marked 811. This was a bill of Katchen and Robtnowitz for the erection of iron window guards and reinforcement of doors by the use of iron work. It was dated November 12, 1921, and was made out to the defendant. A statement made to the defendant, dated December 3, 1921, was with the bill. This statement was receipted. These papers were found upon a file back of the bar on the first floor. They were near the place where the defendant had placed his overcoat on the day of the raid before going to the second floor. The first floor was connected with the second floor by an electric buzzer. The defendant was seen frequently in the saloon. A lookout was stationed at the door leading from the saloon to the upper floor. There was ample evidence from which it could be held that the saloon was a part of the premises used as the disorderly house. When S11 was offered for identification, the defendant's counsel objected in the following language: T object, and again renew my motion that I be permitted to question the witness whether he obtained these four papers which he takes from the file of papers without a search warrant. That goes to the...