State v. Rodgers

• Decision Date: 19 November 1917
• Docket Number: No. 71.,71.
• Citation: 102 A. 433,91 N.J.Law 212
• Parties: STATE. v. RODGERS.
• Court: New Jersey Supreme Court

102 A. 433

91 N.J.Law 212

STATE.

v. RODGERS.

No. 71.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1917.

(Syllabus by the Court.)

Appeal from Supreme Court.

Peter J. Rodgers was convicted in the recorder's court of the city of Paterson on the charge of running an automobile while under the influence of intoxicating liquor, contrary to statute, and from a reversal by the Supreme Court on certiorari (99 Atl. 931), the State appeals. Judgment reversed, and record remitted to Supreme Court, to the end that judgment of recorder's court be affirmed.

John W. Wescott, Atty. Gen., and Josiah Stryker, Asst Atty. Gen., for the State.

Humphreys & Sumner, of Paterson, for appellee.

TRENCHARD, J. This ease was a prosecution commenced in the recorder's court of the city of Paterson. The complaint charges that the defendant did operate a certain automobile over and upon a public street of that city, known as Market street, "while he, the said Peter J. Rodgers, was under the influence of intoxicating liquor, contrary to and in violation of the first section of an act of the Legislature of the state of New Jersey entitled 'Supplement to an act entitled "An act concerning disorderly persons (Revision of 1898)," approved March 12, 1913 (P. L. 1913, p. 103), and by reason thereof the said Peter J. Rodgers became a disorderly person."

The defendant was convicted in the recorder's court and sentenced to imprisonment in the county jail for 30 days. He reviewed this conviction by certiorari, and the Supreme Court set it aside. This reversal seems to have been based upon the grounds: (1) That the evidence showed that the defendant was guilty of the offense of public nuisance indictable at common law, and hence the recorder was without jurisdiction; and (2) that the statute of 1913 was invalid because it provided for a conviction of the offense therein described without indictment and trial by jury. For reasons which we will now state, we are of the opinion that the Supreme Court erred in setting aside the conviction. The act under which the proceeding was had provides that:

"Any person or persons who shall operate an automobile or motor or any other vehicle over any public street or highway while under the influence of intoxicating liquors shall be adjudged to be a disorderly person, and upon conviction thereof shall be punished by an imprisonment of not less than thirty days and not more than six months." P. L. 1913, p. 103, § 1.

No doubt the Legislature has power to provide for the punishment of an offense which is disorderly conduct merely, and not an offense indictable at common law, by summary proceedings without indictment and trial by jury. State v. Anderson, 40 N. J. Law, 224; Shivers v. Newton, 45 N. J. Law, 469; Carter Bros. v. Camden District Court, 49 N. J. Law, 600, 10 Atl. 108; Minard v. Dover, etc., Gas Co., 76 N. J. Law, 132, OS Atl. 910; State v. Lakewood Market Co., 84 N. J. Law, 512, 523, 88 Atl. 194. See. also, Bassette v. State, 51 N. J. Law, 502, 18 Atl. 354, in which the Supreme Court held that the defendant was not entitled to a trial by jury under the Disorderly Persons Act. An early act of this kind was passed June 10, 1799, and appears in the Revision of 1847, p. 564. This act was revised and amplified in 1875 (Revision of 1877, p. 303), and was again revised and further extended in 1898 (2 Comp. Stat. p. 1926). It covers numerous minor offenses, which, from the earliest times in this state, have been punished either by fine or imprisonment, upon summary conviction before a magistrate. An examination of these offenses will show that many of them are not substantially different from the offenses described in the supplement of 1913.

We think it quite clear that the thing prohibited in the supplement of 1913, namely, the driving of an automobile or other vehicle upon a public street, while under the influence of intoxicating liquor, is not a public or common nuisance indictable at common law. The essential elements of the statutory offense are: (1) Driving an automobile or vehicle; (2) upon a public street; and (3) while under the influence of intoxicating liquors,

The essential elements of a public or common nuisance are quite different. "A public or common nuisance is any act or neglect the product of which works an annoyance or injury to the entire community; or the product itself is termed a nuisance." Bishop's Criminal Law, § 1072. Inconvenience or annoyance to the public is an essential element without which there is no public or common nuisance. State v. Godwinsville, etc., Co., 49 N. J. Law, 266, 10 Atl. 606, 60 Am. Rep. 611. And an indictment for a public nuisance must set out the manner in which this inconvenience or annoyance arisen Morris & Essex R. R. Co. v. State, 36 N. J. Law, 553, 555.

It will be seen, therefore, that the statutory offense of driving an automobile upon a public street while under the influence, of intoxicating liquor differs from a public nuisance in this: The former is complete when the thing prohibited by the statute has been done, whether with or without inconvenience or annoyance to the public; whilst the latter offense is not committed unless and until there is an inconvenience or annoyance to the public.

It will be noticed that it is not essential to the existence of the statutory offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. The expression, "under the influence of intoxicating liquor," covers not only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess. So one driving an automobile upon a public street while under the influence of intoxicating liquor offends against the Disorderly Persons Act, even though he drives so slowly and so skillfully and carefully that the public is not annoyed or endangered; but such a driver is clearly not guilty of a public nuisance. To render him guilty of a public nuisance, facts not within the definition of the offense prohibited by the act of 1913 must be shown. In other words, it must appear that the public was inconvenienced or endangered by the driving. This might be shown by proof that the degree of intoxication of the driver was such as to render him incapable of properly driving the machine, or by proof that in fact he...