State v. Montalbo, 656

Decision Date17 December 1954
Docket NumberNo. 656,656
Citation33 N.J.Super. 462,110 A.2d 572
PartiesSTATE of New Jersey, Plaintiff, v. Concepcion MONTALBO, Defendant. . Law Division (Criminal), New Jersey
CourtNew Jersey County Court

Frederick T. Law, Hudson County Prosecutor, Kearny (William A. O'Brien, Asst. County Prosecutor, Jersey City, appearing), attorney for the State.

Albert J. Shea, Hoboken, attorney for defendant.

DUFFY, J.C.C.

The above-named defendant was tried before me on an indictment charging him with violation of N.J.S. 2A:96--4, N.J.S.A. The indictment, entitled 'Contributing to delinquency of child,' was returned by the Hudson County grand jury under date of May 3, 1954. At the close of the State's case, the defendant moved for judgment of acquittal on the grounds that (1) since the statute is silent as to the age of a child thus involved and it appearing that the State's witness was a girl of 17 years, there could be no conviction under the present indictment; and (2) that the statute, being vague, indefinite and uncertain in its language, is unconstitutional, it being violative of the due process clause of the United States Constitution.

I reserved decision on the motion. Defendant then rested and renewed his motion for acquittal. I directed counsel to furnish briefs in support of their contentions and reserved decision.

The statute under review, N.J.S. 2A:96--4, N.J.S.A., is entitled, 'Contributing to delinquency of child' and provides:

'A parent, legal guardian or person having the custody or control of a child, who by any continued negligence or willful act, encourages, causes or contributes to the child's delinquency, or any other person who by any willful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor.'

The section was created under the revision of Title 2 of the Revised Statutes of New Jersey as adopted by the Legislature on December 5, 1951 and made effective January 1, 1952. It is included in chapter 96, which is headed 'Children' and consists of five sections. Section 1 refers to the concealment of the birth of an illegitimate child or death of any child. Section 2 refers to hiring out or employing minors for mendicant or immoral purposes. The minor must be a child under 18 years of age. Section 3 refers to debauching or impairing the morals of a child under 16. Section 4 is quoted above. It should be noted that the age of the child is not specified. Section 5 refers to hiring, employing or using a child under 18 years of age in connection with the transportation or sale of drugs for any unlawful purpose.

Upon reading the entire chapter, it is, obviously, the intent of the Legislature to penalize adults for their abuse of and misconduct towards children as described in the five sections. The intent is the essence and the life of a law. Glick v. Trustees of Free Public Library of City of Newark, 2 N.J. 579, 585, 67 A.2d 463 (1949). And where a section is not entirely clear, statutes In pari materia are to be construed together so as to effectuate the general legislative policy. Lynch v. Borough of Edgewater, 8 N.J. 279, 286, 85 A.2d 191 (1951). Since the statute under review directly involves delinquency of a child, the most direct source of information on this subject is the Juvenile Court Act. This act was revised and re-enacted by the Legislature, effective January 1, 1952.

The pertinent section, N.J.S. 2A:4--14, N.J.S.A., provides that:

'* * * Juvenile delinquency is hereby defined as the commission by a child under 18 years of age '(1) of any act which when committed by a person of the age of 18 years or over would constitute:

'a. A felony, high misdemeanor, misdemeanor, or other offense, or

'b. The violation of any penal law or municipal ordinance, or

'c. Any act or offense for which he could be prosecuted in the method partaking of the nature of a criminal action or proceeding, or

'd. Being a disorderly person, or (2) of the following acts:

'e. Habitual vagrancy, or

'f. Incorrigibility, or

'g. Immorality, or

'h. Knowingly associating with thieves or vicious or immoral persons, or

'i. Growing up in idleness or delinquency, or

'j. Knowingly visiting gambling places, or patronizing other places or establishments, his admission to which constitutes a violation of law, or

'k. Idly roaming the streets at night, or

'1. Habitual truancy from school, or

'm. Deportment endangering the morals, health or general welfare of said child.'

It should be noted (especially) that the above definition specifically applies to a child under 18 years of age. The conduct of the child in the case at bar, in which she was aided and abetted by this defendant, makes her subject to be charged (if it has not already occurred) as a juvenile delinquent in the Juvenile Court.

Counsel for defendant has strongly urged, and cited many cases in support of his view, that a statute which is penal in its nature must be strictly and precisely construed. As a general rule that is entirely true. However, the law does not favor a construction of a penal statute that will aid in its evasion. State v. Hand, 71 N.J.L. 137, 58 A. 641 (Sup.Ct.1904). Or, as stated by our Supreme Court in a recent decision, State v. Meinken, 10 N.J. 348, 352, 91 A.2d 721, 723 (1952), 'While a penal statute is not to be extended by implication or intendment, its clear implication and intendment is not to be denied,' citing State v. Brenner, 132 N.J.L. 607, 41 A.2d 532 (E. & A.1945). A similar expression was made by our highest court in Mayor and Council of Borough of Alpine v. Brewster, 7 N.J. 42, 50, 80 A.2d 297, 301 (1951): '* * * and penal statutes are on well-settled principles to be strictly construed, although the clear implication and intendment of such a statute is not for that reason to be denied.'

As mentioned earlier, the reasonable intendment of N.J.S. 2A:96--4, N.J.S.A., is to punish persons who encourage, cause or contribute to a child's delinquency. The law is established that the prime purpose of construction is to bring the operation of a statute within the apparent intent of the Legislature. Nagy v. Ford Motor Co., 6 N.J. 341, 350, 78 A.2d 709 (1951). It is a fundamental rule that where words have been omitted from a statute by...

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8 cases
  • State v. Flinn, s. CC888--CC890
    • United States
    • West Virginia Supreme Court
    • 2 Julio 1974
    ...Mich.App. 469, 164 N.W.2d 712; State v. Johnson, 145 S.W.2d 468 (Mo.); State v. Simants, 182 Neb. 491, 155 N.W.2d 788; State v. Montalbo, 33 N.J.Super. 462, 110 A.2d 572; State v. McKinley, 53 N.M. 106, 202 P.2d 964; State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897; State v. Crary, 80 Ohio L.......
  • People v. Owens
    • United States
    • Court of Appeal of Michigan — District of US
    • 26 Septiembre 1968
    ...statutes. See State v. Barone (Fla.1960), 124 So.2d 490; United States v. Meyers (D.C.Alaska. 1956), 143 F.Supp. 1; State v. Montalbo (1954), 33 N.J.Super. 462, 110 A.2d 572; State v. McKinley (1949), 53 N.M. 106, 202 P.2d 964; People v. Friedrich (1943), 385 Ill. 175, 52 N.E.2d 120, which ......
  • State v. Blount
    • United States
    • New Jersey Supreme Court
    • 17 Enero 1972
    ...appear to proscribe the same kind of conduct except that N.J.S.A. 2A:96--4 refers to a child under 18, see State v. Montalbo, 33 N.J.Super. 462, 467, 110 A.2d 572 (Cty.Ct.1954), whereas N.J.S.A. 2A:96--3 refers to a child under 16. Indeed, the State concedes the defendant in the present cas......
  • State v. Simants
    • United States
    • Nebraska Supreme Court
    • 19 Enero 1968
    ...of a political subdivision thereof.' (Emphasis supplied.) The court upheld the constitutionality of the statute. In State v. Montalbo, 33 N.J.Super. 462, 110 A.2d 572, the court had before it a statute which provided that: 'A parent, legal guardian or person having the custody or control of......
  • Request a trial to view additional results

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