State v. de Maio

• Decision Date: 23 June 1904
• Citation: 58 A. 173,70 N.J.L. 220
• Parties: STATE v. DE MAIO.
• Court: New Jersey Supreme Court

58 A. 173

70 N.J.L. 220

STATE

v. DE MAIO.

Court of Errors and Appeals of New Jersey.

June 23, 1904.

(Syllabus by the Court.)

Error to Supreme Court Alfred De Maio was convicted of disorderly conduct, and brings error. Affirmed.

John W. Wescott and Louis H. Miller, for plaintiff in error.

J. Hampton Fithian and J. H. Powell, for the State.

GUMMERE, C. J. The writ of error in this case brings up for review a judgment of the Supreme Court affirming a conviction had against the plaintiff in error, before a justice of the peace, under the provisions of "An act concerning disorderly persons."

The first, and principal, assignment of error is based upon the refusal of the Supreme Court to set aside the conviction on account of the alleged disqualification of the magistrate who tried the case. It appears from the record that at the trial before the magistrate, after the complaint had been read to the plaintiff in error, a challenge to the court was interposed in his behalf upon the following grounds: Because the justice was an actor in the proceeding and facts constituting the alleged disorderly acts to be tiled by him; because he was in the employment of the complaining witness; because he originated the acts alleged to be disorderly; because he had prejudged the case before him; and because he had created the situation and facts, to be by him tried, for the purpose of convicting the defendant. Demand was then made on behalf of the plaintiff in error that triors be appointed to try the jurisdiction of the court The justice refused to comply with this demand, and overruled the recusation.

The refusal of the magistrate to appoint triors to try the truth of the facts set forth in the challenge was proper. No authority for such procedure is referred to by counsel, nor has our examination of the books, in investigating this question, disclosed any. In the absence of statutory regulation of the subject, the practice is correctly set out in vol. 11, Ency. Plead. & Prac. p. 783, as follows: "If the facts upon which the alleged disqualification of the judge rests are not admitted by him, or are denied by the other party, the challenger must lay before the court proof of their truth. As to the sufficiency of such proof the judge himself, if sitting alone, must decide."

Nor was there any error in the action of the justice in overruling the recusation and proceeding with the trial of the case. As has just been stated, unless the facts alleged in the challenge...