State v. Pisaniello

• Decision Date: 15 November 1915
• Docket Number: No. 83.,83.
• Citation: 96 A. 89,88 N.J.Law 262
• Parties: STATE v. PISANIELLO.
• Court: New Jersey Supreme Court

96 A. 89

88 N.J.Law 262

STATE

v. PISANIELLO.

No. 83.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1915.

Error to Supreme Court.

Antonio Pisaniello was convicted of selling intoxicants to a minor under the age of 18 years. The conviction being affirmed by the Supreme Court, he brings error. Affirmed.

The per curiam opinion of the Supreme Court is as follows:

The plaintiff in error was convicted of the offense of selling intoxicating liquor to one Raymond Cannon, a minor under the age of 18 years.

The first ground of reversal is directed at the refusal of the motion to quash the indictment by the trial court. A motion to quash is not reviewable on a bill of exceptions, being a matter in the discretion of the court. It is not reviewable as a mattter of discretion under the 136th section of the Criminal Procedure Act, for the reason that only those matters which occur upon the trial of the indictment, and which are matters of discretion, are brought up under that section. Matters preceding the trial, or matters subsequent thereto, do not come within the purview of the statute.

The next ground of reversal is that it was error to permit the prosecuting witness, Raymond Cannon, to testify that he had been served with liquor by the defendant on other occasions; but this contention has no support in fact, for, when the witness started to answer a question directed to that point, counsel for the plaintiff in error objected, and the court thereupon interrupted the witness in his answer, saying, "I am not quite sure about that"; whereupon the prosecutor stated that he would not press the question, and did not.

It is next objected that it was improper to permit the defendant, on his cross-examination, to be interrogated with relation to the sale of liquor to other boys. We are inclined to think the evidence was competent. But, whether so or not, its presence in the record affords no ground of reversal, for the court was not asked to pass upon its admissibility. Counsel sat silent until the questions were answered, and there was, consequently, no ruling of the trial court upon this matter. The refusal to strike out the questions and answers after they had come in was proper.

The exclusion of testimony offered by the plaintiff in error through the witness Ademo, relating to his being requested by plaintiff in error to eject Raymond on the occasion specified in the indictment, was, if improper, harmless, because the proof came in afterwards by the same witness.

At the close of the case there was a motion to direct a verdict made upon two grounds: First, that the indictment, under the supplement of 1908 to the Crimes Act, was invalid, because, under the act of 1878, violations of the law prohibiting the sale of liquor to minors were made triable before a police magistrate. If there is a conflict between the earlier and the later statute, the later must be accepted as settling the law. The indictment, therefore, was proper. Another ground relied on for the direction of a verdict was that the supplement of 1908 was unconstitutional. It may be that those provisions of the act referred to by counsel violate constitutional provisions, but whether they do or not is immaterial; for the third section of the act does not, and that is the provision upon which the indictment was based. Where some portions of a statute are unconstitutional, the whole act will not fall, unless it is manifestly the legislative intent that it shall stand or fall as a unit. As these were the only grounds suggested to the trial court upon which the motion to direct a verdict was rested, we cannot consider other grounds suggested for the first time in this court by counsel for plain tiff in error.

Further, it is contended that it was harmful error to refuse to charge the following request: "If you find that the wife, or agent, of the defendant sold the liquor to the boy, Cannon, on October 12, 1913, and that the defendant did not make any sales in person, then you cannot find him guilty of the misdemeanor charged in the indictment." The plaintiff in error can take nothing by this contention. In the first place, this request was charged in its essence. In the second place, the legal proposition contained in it is unsound; for the defendant is responsible for all acts done by his agents, or his wife, in the carrying on of his business, unless they are done without his authority.

Lastly, it is contended that the charge with relation to what constitutes a reasonable doubt was inaccurate. We find nothing in the language of the trial court which justifies this assertion.

The judgment under review will be affirmed.

Clarence Kelsey, of Jersey City, for plaintiff in error. Robert S. Hudspeth, Prosecutor of the Pleas, and George T. Vickers, Asst. Prosecutor, both of Jersey City, for the State.

PARKER, J. The law seems to be settled that a motion to quash is addressed to the discretion of the court, and the denial of such a motion per se and without reference-to its function as a foundation for a later motion addressed to the legality of the indictment is not reviewable on strict writ of error. State v. Meeker, 72 N. J. Law, 210, 61 Atl. 381. Prior to that decision the point had been mooted, but not decided. Parks v. State, 62 N. J. Law, 664, 665, 43 Atl. 52. The Supreme Court properly followed the ruling in the Meeker Case.

The Supreme Court further held in the case at bar that the denial of a motion to quash could not be reviewed under section 136 (although that section expressly provides for a review of rulings resting in discretion), because it relates only to "proceedings had upon the trial," and a motion to quash is normally made before the jury is...